Chapter 3301-51 Education of Students with Special Needs

(A) Applicability of requirements

The purpose of Chapter 3301-51 of the Administrative Code is to ensure that all children with disabilities residing in Ohio between the ages of three and twenty-one years, inclusive, including children with disabilities who have been suspended or expelled from school, have available to them a free appropriate public education (FAPE), as provided by Part B of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) at 20 U.S.C. 1400 (Public Law 108-446 of the 108th Congress, December 3, 2004), related federal regulations at 34 C.F.R. Part 300 (October 13, 2006), Chapter 3323. of the Revised Code, the provisions of this chapter of the Administrative Code, and applicable state policies, procedures, and guidelines issued by the superintendent of public instruction.

(1) The provisions of this chapter shall provide that:

(a) Children with disabilities have available to them FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(b) The rights of children with disabilities and their parents are protected.

(2) School district of residence

(a) The child’s school district of residence is responsible, in all instances, for ensuring that the requirements of paragraph (A) of this rule for making FAPE available are met for every eligible child in its jurisdiction, regardless of whether services are provided by another school district, other educational agency, juvenile justice facility, or other facility, agency, department, or entity unless Chapter 3323. of the Revised Code, or a rule adopted by the state board of education specifies that another school district, other educational agency, or other agency, department, or entity is responsible for ensuring compliance with Part B of the IDEA.

(b) Notwithstanding paragraph (A)(2)(a) of this rule, a school district of residence is not required to pay for the cost of education, including special education and related services, of a child with a disability at a nonpublic school or facility if that school district made FAPE available to the child, and the parents elected to place the child in a nonpublic school or facility. However, the school district must include the child in the population whose needs are addressed consistent with the requirements of rule 3301-51-08 of the Administrative Code

(3) School district other than school district of residence

(a) Each school district is responsible for serving a child with a disability who is living in its school district, even though the school district is not the child’s school district of residence. The child’s school district of residence retains responsibility for making FAPE available to the child.

(b) “Serving a child with a disability” means educating the child which includes making special education and related services available to the child.

(i) The responsibility to serve a nonresident child with a disability living in the school district includes, but is not limited to, a child with a disability placed in a juvenile justice facility, institution, hospital, agency, department, home as defined in section 3313.64 of the Revised Code, or other facility or entity located in the school district.

(ii) The responsibility to serve a nonresident child with a disability does not apply to the school district in which the child is living if the child is already being served by another school district, a nonpublic school, county board of mental retardation and developmental disabilities (county board of MR/DD), other educational agency, a state or local agency or institution, or other provider, including an open enrollment school district, the Ohio department of youth services, or provider for the “Autism Scholarship Program” established by section 3310.41 of the Revised Code. However, if the child is placed in a nonpublic school in the school district, the school district must include the child in the population whose needs are addressed consistent with the requirements of rule 3301-51-08 of the Administrative Code.

(4) Funding for special education

No school district, county board of MR/DD, or other educational agency shall receive state or federal funds for special education and related services or provide special education and related services unless such special education and related services are provided in accordance with all applicable provisions of the IDEA and related federal regulations, Chapter 3323. of the Revised Code, this chapter of the Administrative Code, and related state policies, procedures, and guidelines issued by the superintendent of public instruction..

(5) Plan

Each school district, county board of MR/DD, or other educational agency, in providing for the education of children with disabilities within its jurisdiction, must have in effect a plan, written policies and procedures, and programs that are consistent with the state’s policies and procedures related to the implementation of Part B of the IDEA. The plan shall provide assurances to the superintendent of public instruction that the school district, county board of MR/DD, or other educational agency meets each of the applicable conditions in 34 C.F.R. 300.201 to 300.213 (October 13, 2006). Each school district’s plan shall also meet the requirements of section 3323.08 of the Revised Code. Each school district, county board of MR/DD, or other educational agency shall submit its plan to the superintendent of public instruction as part of its comprehensive continuous improvement plan.

(6) Documentation and information

The superintendent of public instruction may require a state agency, school district, county board of MR/DD, or other educational agency to provide documentation that special education and related services for children with disabilities provided by the public agency are provided in compliance with the requirements specified in paragraph (A) of this rule.

(a) A school district, county board of MR/DD, or other educational agency must provide the superintendent of public instruction with information necessary to enable the superintendent to carry out the state’s duties under Part B of the IDEA, including, information relating to the performance of children with disabilities participating in programs carried out under Part B of the IDEA.

(b) A school district, county board of MR/DD, or other educational agency must make available to parents of children with disabilities and to the general public all documents relating to the eligibility of the school district, county board of MR/DD, or other educational agency under Part B of the IDEA.

(c) A school district, county board of MR/DD, or other educational agency must cooperate in the secretary’s efforts under section 1308 of the Elementary and Secondary Education Act of 1965, as amended and specified in the No Child Left Behind Act of 2001, January 2002, 20 U.S.C. 6301 (ESEA) to ensure the linkage of records pertaining to migratory children with disabilities for the purpose of electronically exchanging, among the states, health, and educational information regarding those children.

(7) Ineligibility and opportunity for hearing

If the superintendent of public instruction determines that a state agency, school district, county board of MR/DD, or other educational agency is not eligible under Part B of the IDEA for purposes of receiving assistance under Part B of the IDEA, the superintendent shall:

(a) Notify the state agency, school district, county board of MR/DD, or other educational agency of that determination; and

(b) Provide the state agency, school district, county board of MR/DD, or other educational agency with reasonable notice and an opportunity for a hearing.

(8) Effect of noncompliance on funding; notice to public

If the superintendent of public instruction, after reasonable notice and an opportunity for a hearing, finds that a state agency, school district, county board of MR/DD, or other educational agency that has been determined to be eligible under Part B of the IDEA is failing to comply with any requirement in Sections 34 C.F.R. 300.201 to 34 C.F.R. 300.213 (October 13, 2006):

(a) The superintendent of public instruction must reduce or must not provide any further payment to the state agency, school district, county board of MR/DD, or other educational agency until the state superintendent is satisfied that the state agency, school district, county board of MR/DD, or other educational agency is complying with that requirement.

(b) Any state agency, school district, county board of MR/DD, or other educational agency in receipt of a notice described in paragraph (A)(8)(a) of this rule must, by means of public notice, take the measures necessary to bring the pendency of an action pursuant to this rule to the attention of the public within the jurisdiction of the state agency, school district, county board of MR/DD, or other educational agency.

(B) Definitions

The following terms are defined as they are used in rules 3301-51-01 to 3301-51-09 and 3301-51-11 of the Administrative Code:

(1) “Act” or “IDEA” means the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 at 20 U.S.C. 1400, Public Law 108-446 of the 108th Congress, December 3, 2004 (IDEA).

(2) “Assistive technology device” means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term does not include a medical device that is surgically implanted, or the replacement of such device.

(3) “Assistive technology service” means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes:

(a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child’s customary environment;

(b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;

(c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

(d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

(e) Training or technical assistance for a child with a disability or, if appropriate, that child’s family; and

(f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.

(4) “Average daily membership” means the number of children that are counted to generate state funds under the Ohio school foundation funding program.

(5) “Benchmark” means a specific statement of what the child should know and be able to do in a specified segment of the year. Benchmarks describe how far the child is expected to progress toward the annual goal and by when. Benchmarks establish expected performance levels that allow for regular checks of progress that coincide with the reporting periods for informing parents of the child’s progress toward achieving the annual goals.

(6) “Braille,” unless otherwise specified, means a tactile system of reading and writing for individuals with visual impairments commonly known as standard English braille.

(7) “Caseload for one preschool special education teacher” means the number of children who collectively comprise the full time equivalency for ratios or funding.

(8) “Charter school” or “community school” has the meaning given the term in Section 5210(1) of the Elementary and Secondary Education Act of 1965, as amended and reauthorized by the No Child Left Behind Act of 2001, January 2002, 20 U.S.C. 6301 (ESEA). The term “charter school” does not have the same meaning as “chartered nonpublic school.”

(9) “Chartered nonpublic school” means a school chartered by the state board of education pursuant to section 3301.16 of the Revised Code and that meets the minimum standards for chartered nonpublic schools cited in the “Operating Standards for Ohio’s Elementary and Secondary Schools” (February 2006) in rule 3301-35-12 of the Administrative Code.

(10) “Child with a disability” means a child evaluated in accordance with rule 3301-51-06 of the Administrative Code as having a cognitive disability (mental retardation), a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this rule as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.

(a) Subject to paragraph (B)(10)(b) of this rule, if it is determined, through an appropriate evaluation under rule 3301-51-06 of the Administrative Code, that a child has one of the disabilities identified in this rule, but needs only a related service and not special education, the child is not a child with a disability under this rule.

(b) If, consistent with the definition of special education in paragraph (B)(58) of this rule, the individualized education program (IEP) team considers the related service required by the child to be special education rather than a related service under state standards, the child would be determined to be a child with a disability under this rule.

(c) Children aged three through five years who are experiencing developmental delays. “Child with a disability” for children aged three through five years, may, subject to the conditions described in rule 3301-51-03 of the Administrative Code for the use of the term developmental delay, include a child:

(i) Who is experiencing developmental delays, as defined by rule 3301-51-11 of the Administrative Code and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development as provided by rule 3301-51-11 of the Administrative Code; and

(ii) Who, by reason thereof, needs special education and related services.

(d) Definitions of disability terms. The terms used in this definition of a “child with a disability” are defined as follows:

(i) “Autism” means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with “autism” are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.

(a) Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (B)(10)(d)(v) of this rule.

(b) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (B)(10)(d)(i) of this rule are satisfied.

(ii) “Cognitive disability” (mental retardation) means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance. This definition replaces the definition of mental retardation in 34 C.F.R. 300.8(c)(6) (October 13, 2006) and shall be used instead whenever the federal regulations at 34 C.F.R. Part 300 (October 13, 2006), state statutes at Chapter 3323. of the Revised Code, or the state rules in Chapter 3301-51 of the Administrative Code refer to mental retardation or cognitive disability.

(a) “Significantly subaverage general intellectual functioning” refers to an intelligence quotient of seventy or below as determined through a measure of cognitive functioning administered by a school psychologist or a qualified psychologist using a test designed for individual administration. Based on a standard error of measurement and clinical judgment, a child may be determined to have significant subaverage general intellectual functioning with an intelligence quotient not to exceed seventy-five.

(b) “Deficits in adaptive behavior” means deficits in two or more applicable skill areas occurring within the context of the child’s environments and typical of the child’s chronological age peers.

(c) A child who was identified by an Ohio school district as having a developmental handicap prior to July 1, 2002 shall be considered a child with a disability if the child continues to meet the definition of “developmentally handicapped” in paragraph “N.” of former rule 3301-51-01 of the Administrative Code and the eligibility requirements of paragraph “F.1” of former rule 3301-51-04 of the Administrative Code that are both contained in the “Rules for the Education of Handicapped Children,” which were effective July 1, 1982 and were rescinded July 1, 2002. A child who meets these provisions shall be eligible to receive special education and related services in accordance with the “Operating Standards for Ohio’s Schools Serving Children with Disabilities” effective July 1, 2008.

(iii) “Deaf-blindness” means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.

(iv) “Deafness” means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.

(v) “Emotional disturbance” means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(a) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(b) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(c) Inappropriate types of behavior or feelings under normal circumstances.

(d) A general pervasive mood of unhappiness or depression.

(e) A tendency to develop physical symptoms or fears associated with personal or school problems.

(f) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (B)(10)(d)(v) of this rule.

(vi) “Hearing impairment” means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this rule.

(vii) “Multiple disabilities” means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. “Multiple disabilities” does not include deaf-blindness.

(viii) “Orthopedic impairment” means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

(ix) “Other health impairment” means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that:

(a) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and tourette syndrome; and

(b) Adversely affects a child’s educational performance.

(x) Specific learning disability.

(a) General. “Specific learning disability” means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.

(b) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

(xi) “Speech or language impairment” means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.

(xii) “Traumatic brain injury” means an acquired injury to the brain caused by an external physical force or by other medical conditions, including but not limited to stroke, anoxia, infectious disease, aneurysm, brain tumors and neurological insults resulting from medical or surgical treatments. The injury results in total or partial functional disability or psychosocial impairment or both, that adversely affects a child’s educational performance. The term applies to open or closed head injuries, as well as to other medical conditions that result in acquired brain injuries. The injuries result in impairments in one or more areas such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma. This definition replaces the definition of traumatic brain injury in 34 C.F.R. 300.8(c)(12) (October 13, 2006) and shall be used instead whenever the federal regulations at 34 C.F.R. Part 300 (October 13, 2006), state statutes at Chapter 3323. of the Revised Code, or the state rules in Chapter 3301-51 of the Administrative Code refer to traumatic brain injury.

(xiii) “Visual impairment” including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness. Visual impairment for any child means:

(a) A visual impairment, not primarily perceptual in nature, resulting in a measured visual acuity of 20/70 or poorer in the better eye with correction; or

(b) A physical eye condition that affects visual functioning to the extent that special education placement, materials and/or services are required in an educational setting.

(11) “Community school” means a public school, created in accordance with Chapter 3314. of the Revised Code, that is independent of any school district and part of the state’s program of education. Community schools shall be considered school districts for the purposes of this chapter of the Administrative Code.

(12) “Consent” means that:

(a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent’s native language, or other mode of communication;

(b) The parent understands and agrees in writing to the carrying out of the activity for which the parent’s consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

(i) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime.

(ii) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).

(13) “Core academic subjects” means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography. This term does not refer to “Ohio Core Curriculum.”

(14) “County board of mental retardation and developmental disabilities” (county board of MR/DD) means a county board of mental retardation and developmental disabilities as provided by section 5126.02 of the Revised Code.

(15) “Day” means calendar day unless otherwise indicated as business day or school day.

(a) “Business day” means Monday through Friday, except for federal and state holidays (unless holidays are specifically included in the designation of business day).

(b) “School day” means any day, including a partial day that children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities.

(16) “Destruction” means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

(17) “Education records” means the type of records covered under the definition of “education records” in 34 C.F.R. Part 99 (July 1, 2005) (the regulations implementing the Family Educational Rights and Privacy Act of 1974, August 1974, 20 U.S.C. 1232g (FERPA)). Under that definition, the term “education records” means those records that are directly related to a student and are maintained by an educational agency or institution or by a party acting for the agency or institution. The term does not include the type of records which are listed and described as records excluded from that definition under 34 C.F.R. 99.3(b)(1) to 34 C.F.R. 99.3(b)(5) (July 1, 2005).

(18) “Elementary school” means a nonprofit institutional day or residential school, including an elementary community school, that provides elementary education, as determined under state law.

(19) “Equipment” means:

(a) Machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house the machinery, utilities, or equipment; and

(b) All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.

(20) “Evaluation” means procedures used in accordance with rule 3301-51-06 of the Administrative Code for evaluations to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.

(21) “Evaluation team” means the IEP team and other qualified professionals.

(22) “Excess costs” means those costs that are in excess of the average annual per-student expenditure in a school district during the preceding school year for an elementary school or secondary school student, as may be appropriate, and that must be computed after deducting:

(a) Amounts received:

(i) Under Part B of the IDEA;

(ii) Under Part A of Title I of the Elementary and Secondary Education Act of 1965, as amended and reauthorized by the No Child Left Behind Act of 2001, January 2002, 20 U.S.C. 6301 (ESEA); and

(iii) Under Parts A and B of Title III of the ESEA and;

(b) Any state or local funds expended for programs that would qualify for assistance under any of the acts described in paragraph (B)(22)(a) of this rule, but excluding any amounts for capital outlay or debt service. (See appendix A to Part 300 of the IDEA for an example of how excess costs must be calculated.)

(23) “Free appropriate public education” or FAPE means special education and related services that:

(a) Are provided at public expense, under public supervision and direction, and without charge;

(b) Meet the standards of the Ohio department of education, including the requirements of this rule;

(c) Include an appropriate preschool, elementary school, or secondary school education in the state involved; and

(d) Are provided in conformity with an IEP that meets the requirements of rule 3301-51-07 of the Administrative Code for individualized education programs.

(24) “General curriculum” refers to the same curriculum that is used with children without disabilities.

(25) “General education” means a learning environment that provides a community of students with the opportunity to acquire skills and knowledge necessary to meet state and local performance objectives.

(26) “Help Me Grow” means a system of early intervention services for infants and toddlers with disabilities which are provided, in accordance with Part C of the IDEA, federal regulations, state law, and state rules, by the lead agency selected by the governor of the state.

(27) Highly qualified special education teacher:

(a) Requirements for special education teachers teaching core academic subjects. For any public elementary or secondary school special education teacher teaching core academic subjects, the term “highly qualified” has the meaning given the term in Section 9101 of the Elementary and Secondary Education Act of 1965, as amended and reauthorized by the No Child Left Behind Act of 2001, January 2002, 20 U.S.C. 6301 (ESEA) and 34 C.F.R. 200.56 (July 1, 2007), except that the requirements for highly qualified also:

(i) Include the requirements described in paragraph (B)(27)(b) of this rule; and

(ii) Include the option for teachers to meet the requirements of Section 9101 of the ESEA by meeting the requirements of paragraphs (B)(27)(c) and (B)(27)(d) of this rule.

(b) Requirements for special education teachers in general

(i) When used with respect to any public elementary school or secondary school special education teacher teaching in the state, highly qualified requires that:

(a) The teacher has obtained full state certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the state special education teacher licensing examination, and holds a license to teach in the state as a special education teacher, except that when used with respect to any teacher teaching in a community school, “highly qualified” means that the teacher meets the certification or licensing requirements, if any, set forth in the state’s community school law;

(b) The teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and

(c) The teacher holds at least a bachelor’s degree.

(ii) A teacher will be considered to meet the standard in paragraph (B)(27)(b)(i)(a) of this rule if that teacher is participating in an alternative route to special education certification program under which:

(a) The teacher:

(i) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;

(ii) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;

(iii) Assumes functions as a teacher only for a specified period of time not to exceed three years; and

(iv) Demonstrates satisfactory progress toward full certification as prescribed by the state; and

(b) The state ensures, through its certification and licensure process, that the provisions in paragraph (B)(27)(b)(ii)(a) of this rule are met.

(iii) Any public elementary school or secondary school special education teacher teaching in Ohio, who is not teaching a core academic subject, is highly qualified if the teacher meets the requirements in paragraph (B)(27)(b)(i) or the requirements in paragraphs (B)(27)(b)(i)(c) and (B)(27)(b)(ii) of this rule.

(c) Requirements for special education teachers teaching to alternate achievement standards

When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under 34 C.F.R. 200.1(d) (July 1, 2007), “highly qualified” means the teacher, whether new or not new to the profession, may either:

(i) Meet the applicable requirements of Section 9101 of the ESEA and 34 C.F.R. 200.56 (July 1, 2007) for any elementary, middle, or secondary school teacher who is new or not new to the profession; or

(ii) Meet the requirements of paragraph (B) or (C) of Section 9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of Section 9101(23) of the ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards, as determined by the state.

(d) Requirements for special education teachers teaching multiple subjects

Subject to paragraph (B)(27)(e) of this rule, when used with respect to a special education teacher who teaches two or more core academic subjects exclusively to children with disabilities, “highly qualified” means that the teacher may either:

(i) Meet the applicable requirements of Section 9101 of the ESEA and 34 C.F.R. 200.56(b) or (c) (July 1, 2007);

(ii) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under 34 C.F.R. 200.56(c) (July 1, 2007) which may include a single, high objective uniform state standard of evaluation (HOUSSE) covering multiple subjects; or

(iii) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate, not later than two years after the date of employment, competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under 34 C.F.R. 200.56(c) (July 1, 2007), which may include a single HOUSSE covering multiple subjects.

(e) Separate HOUSSE standards for special education teachers

Provided that any adaptations of the state’s HOUSSE would not establish a lower standard for the content knowledge requirements for special education teachers and meets all the requirements for a HOUSSE for regular education teachers:

(i) A state may develop a separate HOUSSE for special education teachers; and

(ii) The standards described in paragraph (B)(27)(e)(i) of this rule may include single HOUSSE evaluations that cover multiple subjects.

(f) Rule of construction

Notwithstanding any other individual right of action that a parent or student may maintain under this rule, nothing in this rule shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular Ohio department of education or school district employee to be highly qualified, or to prevent a parent from filing a complaint under rule 3301-51-05 of the Administrative Code about staff qualifications with the Ohio department of education as provided for under this rule.

(g) Applicability of definition to ESEA; and clarification of new special education teacher

(i) A teacher who is highly qualified under this rule is considered highly qualified for purposes of the ESEA.

(ii) For purposes of paragraph (B)(27)(d)(iii) of this rule, a fully certified regular education teacher who subsequently becomes fully certified or licensed as a special education teacher is a new special education teacher when first hired as a special education teacher.

(h) Nonpublic school teachers not covered

The requirements in this rule do not apply to teachers hired by nonpublic elementary schools and secondary schools including nonpublic school teachers hired or contracted by school districts to provide equitable services to parentally placed nonpublic school children with disabilities under rule 3301-51-08 of the Administrative Code.

(28) “Homeless children” has the meaning given the term homeless children and youths in Section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless Assistance Act, as amended and specified in Title X, Part C, of the No Child Left Behind Act of 2001, January 2002, 42 U.S.C. 11431.

(29) “Include” means that the items named are not all of the possible items that are covered, whether like or unlike the ones named.

(30) “Independent educational evaluation” means an evaluation conducted by a qualified examiner who is not employed by the school district responsible for the education of the child in question.

(31) “Individualized education program” or IEP means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with rule 3301-51-07 of the Administrative Code.

(32) “Individualized education program team” or IEP team means a group of individuals described in paragraph (I) of rule 3301-51-07 of the Administrative Code that is responsible for developing, reviewing, or revising an IEP for a child with a disability.

(33) “Institution of higher education” :

(a) Has the meaning given the term in Section 101 of the Higher Education Act of 1965, as amended and specified in the Higher Education Amendments of 1998, January 1998, 20 U.S.C. 1021 (HEA); and

(b) Also includes any community college receiving funds from the secretary of the interior under the Tribally Controlled Community College or University Assistance Act of 1978 (renamed Tribally Controlled College or University Assistance Act of 1978), October 1978, 25 U.S.C. 1801.

(34) “Itinerant services for a preschool child with a disability” means services provided by intervention specialists or related services personnel which occur in the setting where the child, the child and parent(s), or the child and caregiver are located as opposed to services provided at a centralized location.

(35) “Limited English proficient” has the meaning given the term in Section 9101(25) of the Elementary and Secondary Education Act of 1965, as amended and reauthorized by the No Child Left Behind Act of 2001, January 2002, 20 U.S.C. 6301 (ESEA).

(36) Native language:

(a) When used with respect to an individual who is limited English proficient, “native language” means the following:

(i) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (B)(36)(a)(ii) of this rule.

(ii) In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.

(b) For an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual (such as sign language, braille, or oral communication).

(37) “Non-chartered nonpublic school” means a school, that is not chartered or seeking a charter from the state board of education because of truly held religious beliefs. Such school shall annually certify in a report to the parents of its pupils that the school meets Ohio minimum standards for non-chartered, non-tax supported schools cited in the “Operating Standards for Ohio’s Elementary and Secondary Schools” in paragraphs (A) to (H) of rule 3301-35-12 of the Administrative Code.

(38) “Nonpublic school” means a private school which is recognized by the Ohio department of education as either a chartered school as defined in section 3301.16 of the Revised Code or a non-chartered school as described in rule 3301-35-08 of the Administrative Code. This definition shall apply whenever the term “private school” is used in the federal regulations at 34 C.F.R. Part 300 (October 13, 2006) or whenever the term “nonpublic school” is used in this chapter of the Administrative Code or in guidelines issued by the Ohio department of education for each school district to provide equitable services for children who are attending nonpublic schools located within the school district.

(39) “Objective” means a smaller, more manageable learning task that a child must master as a step toward achieving an annual goal. Objectives break the skills described in the annul goal into discrete components that, when mastered, allow the child to successfully obtain the goal.

(40) “Other educational agency” means a joint vocational school district; department; division; bureau; office; institution; board; commission; committee; authority; or other state or local agency, other than a school district or an agency administered by the department of mental retardation and developmental disabilities, that provides or seeks to provide special education or related services to children with disabilities.

(41) “Paraprofessional services” include services provided by school, county board of MR/DD, and other educational agency employees who are adequately trained to assist in the provision of special education and related services to children with disabilities. Paraprofessionals work under the supervision of teachers, intervention specialists, and/or related service providers. Other titles used to identify these service providers include teacher assistants, educational aides, school psychology aides, occupational therapy assistants, physical therapist assistants, and job coaches.

(42) “Parent” means:

(a) A biological or adoptive parent of a child but not a foster parent of a child;

(b) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the state if the child is a ward of the state);

(c) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or

(d) A surrogate parent who has been appointed in accordance with rule 3301-51-05 of the Administrative Code.

(e) Except as provided in paragraph (B)(42)(f) of this rule, the biological or adoptive parent, when attempting to act as the parent under this rule and when more than one party is qualified under this rule to act as a parent, must be presumed to be the parent for purposes of this chapter of the Administrative Code unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.

(f) If a judicial decree or order identifies a specific person or persons under paragraphs (B)(42)(a) to (B)(42)(c) of this rule to act as the parent of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the parent for purposes of this rule.

(43) “Parent mentor” means a parent of a child with a disability employed by a school district to assist education personnel and families by providing training, support, and information services.

(44) “Parent training and information center” means a center assisted under Sections 671 or 672 of the IDEA.

(45) “Parentally placed nonpublic school children with disabilities” means children with disabilities enrolled by their parents in nonpublic, including religious, schools or facilities that meet the definition of elementary school or secondary school in this rule, other than children with disabilities in nonpublic schools who are placed or referred by public agencies.

(46) “Participating agency” means any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the IDEA.

(47) “Personally identifiable” means information that contains:

(a) The name of the child, the child’s parent, or other family member;

(b) The address of the child;

(c) A personal identifier, such as the child’s social security number or student number; or

(d) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.

(48) “Preschool child with a disability” means a child who:

(a) Is at least three years of age and not six years of age; and

(b) Meets the definition of a “child with a disability” in paragraph (B)(10) of this rule or, at the discretion of the school district, is a child who:

(i) Is experiencing developmental delays, as defined in rule 3301-51-11 of the Administrative Code and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and

(ii) Who, by reason thereof, needs special education and related services.

(49) “Public agency” includes the school districts, county boards of mental retardation and developmental disabilities, other educational agencies, community schools and any other political subdivisions of the state that are responsible for providing education to children with disabilities.

(50) “Qualified personnel” means personnel who have met Ohio department of education-approved or Ohio department of education-recognized certification, licensing, or other comparable requirements that apply to the area in which the individuals are providing special education or related services.

(51) “Referral” means the date the public school district or community school receives a parent’s, school district’s, or other educational agency’s request for an initial evaluation or reevaluation.

(52) “Related services” means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training.

(a) Exception; services that apply to children with surgically implanted devices, including cochlear implants.

(i) Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (e.g., mapping), maintenance of that device, or the replacement of that device.

(ii) Nothing in paragraph (B)(52)(a)(i) of this rule:

(a) Limits the right of a child with a surgically implanted device (e.g., cochlear implant) to receive related services (as listed in this rule) that are determined by the IEP team to be necessary for the child to receive FAPE.

(b) Limits the responsibility of a school district to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the child, including breathing, nutrition, or operation of other bodily functions, while the child is transported to and from school or is at school; or

(c) Prevents the routine checking of an external component of a surgically-implanted device to make sure it is functioning properly, as required in rule 3301-51-02 of the Administrative Code.

(b) Individual related services terms defined. The terms used in this rule are defined as follows:

(i) “Attendant services” are those that assist children with disabilities with personal health care needs.

(ii) “Audiology” includes:

(a) Identification of children with hearing loss;

(b) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention for the habilitation of hearing;

(c) Provision of habilitative activities, such as language habilitation, auditory training, speech reading (lip-reading), hearing evaluation, and speech conservation;

(d) Creation and administration of programs for prevention of hearing loss;

(e) Counseling and guidance of children, parents, and teachers regarding hearing loss; and

(f) Determination of children’s needs for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.

(iii) “Counseling services” means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel.

(iv) “Early identification and assessment of disabilities in children” means the implementation of a formal plan for identifying a disability as early as possible in a child’s life.

(v) “Interpreting services” includes:

(a) The following, when used with respect to children who are deaf or hard of hearing: oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services, and transcription services, such as “communication access real-time translation (CART),” “C-Print,” and “TypeWell”; and

(b) Special interpreting services for children who are deaf-blind.

(vi) “Medical services” means services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services.

(vii) “Occupational therapy” :

(a) Means services provided by a qualified occupational therapist licensed under Chapter 4755. of the Revised Code; and

(b) Includes:

(i) Improving, developing, or restoring functions impaired or lost through illness, injury, or deprivation;

(ii) Improving ability to perform tasks for independent functioning if functions are impaired or lost; and

(iii) Preventing, through early intervention, initial or further impairment or loss of function.

(viii) “Occupational therapy assistant services” means services provided by an occupational therapy assistant licensed under Chapter 4755. of the Revised Code and includes assisting in the practice of occupational therapy under the direction and supervision of an occupational therapist.

(ix) “Orientation and mobility services” :

(a) Means services provided to blind or visually impaired children by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home, and community; and

(b) Includes teaching children the following, as appropriate:

(i) Spatial and environmental concepts and use of information received by the senses (such as sound, temperature and vibrations) to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);

(ii) To use the long cane or a service animal to supplement visual travel skills or as a tool for safely negotiating the environment for children with no available travel vision;

(iii) To understand and use remaining vision and distance low vision aids; and

(iv) Other concepts, techniques, and tools.

(x) “Parent counseling and training” means:

(a) Assisting parents in understanding the special needs of their child;

(b) Providing parents with information about child development; and

(c) Helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s IEP.

(xi) “Physical therapy” means services provided by a qualified physical therapist licensed under Chapter 4755. of the Revised Code.

(xii) “Physical therapist assistant services” means services provided by a physical therapist assistant licensed under Chapter 4755. of the Revised Code who performs such services under the direction and supervision of a physical therapist.

(xiii) “Psychological services” :

(a) Include but are not limited to:

(i) Administering psychological and educational tests, and other assessment procedures;

(ii) Interpreting assessment results;

(iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning;

(iv) Consulting with other staff members to plan and develop school programs and interventions to meet the educational needs or special education needs of children or groups of children as indicated by psychological tests, interviews, direct observation, and behavioral evaluations;

(v) Conducting and monitoring interventions;

(vi) Diagnosing psychological disorders that effect learning and/or behavior;

(vii) Planning and managing a program of psychological services, including psychological counseling for children and parents;

(viii) Participating in the provision of a program of mental health services; and

(ix) Assisting in developing positive behavioral intervention strategies.

(b) The services of a school psychology aide shall be under the direct supervision of a school psychologist.

(c) The school psychologist intern program shall be organized under guidelines approved by the Ohio department of education, office for exceptional children.

(xiv) “Reader services” means assisting learners with visual impairments by orally reading written materials.

(xv) “Recreation” includes:

(a) Assessment of leisure function;

(b) Therapeutic recreation services;

(c) Recreation programs in schools and community agencies; and

(d) Leisure education.

(xvi) “Rehabilitation counseling services” means services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of a student with a disability. The term also includes vocational rehabilitation services provided to a student with a disability by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended and specified in the Rehabilitation Act Amendments of 1998, August 1998, 29 U.S.C. 701.

(xvii) “School health services and school nurse services” means health services that are designed to enable a child with a disability to receive FAPE as described in the child’s IEP. School nurse services are services provided by a qualified school nurse. School health services are services that may be provided by either a qualified school nurse or other qualified person.

(xviii) “Social work services in schools” includes:

(a) Preparing a social or developmental history on a child with a disability;

(b) Group and individual counseling with the child and family;

(c) Working in partnership with parents and others on those problems in a child’s living situation (home, school, and community) that affect the child’s adjustment in school;

(d) Mobilizing school and community resources to enable the child to learn as effectively as possible in the child’s educational program; and

(e) Assisting in developing positive behavioral intervention strategies.

(xix) “Speech-language pathology services” includes:

(a) Identification of children with speech or language impairments;

(b) Diagnosis and appraisal of specific speech or language impairments;

(c) Referral for medical or other professional attention necessary for the habilitation of speech or language impairments;

(d) Provision of speech and language services for the habilitation or prevention of communicative impairments; and

(e) Counseling and guidance of parents, children, and teachers regarding speech and language impairments.

(xx) “Transportation” includes:

(a) Travel to and from school and between schools;

(a) Travel in and around school buildings; and

(a) Specialized equipment (such as special or adapted buses, lifts, and ramps), if required to provide special transportation for a child with a disability.

(53) “School district” means a city, local, exempted village school district, or a community school.

(54) “School district of residence” means:

(a) The school district in which the child’s parents reside;

(b) If the child is enrolled in a community school, the community school is considered to be the “school district of residence”;

(c) If the school district specified in paragraph (B)(54)(a) or (B)(54)(b) of this rule cannot be determined, the last school district in which the child’s parents are known to have resided if the parents’ whereabouts are unknown;

(d) If the school district specified in paragraph (B)(54)(c) of this rule cannot be determined, the school district determined by the court under section 2151.362 of the Revised Code, or if no district has been so determined, the school district as determined by the probate court of the county in which the child resides.

(e) Notwithstanding paragraphs (B)(54)(a) to (B)(54)(d) of this rule, if a school district is required by section 3313.65 of the Revised Code to pay tuition for a child, that district shall be the child’s school district of residence.

(55) “Scientifically based research” has the meaning given the term in Section 9101(37) of the Elementary and Secondary Education Act of 1965, as amended and reauthorized by the No Child Left Behind Act of 2001, January 2002, 20 U.S.C. 6301 (ESEA).

(56) “Secondary school” means a nonprofit institutional day or residential school, including a secondary community school that provides secondary education, as determined under state law, except that it does not include any education beyond grade twelve.

(57) “Services plan” means a written statement that describes the special education and related services the school district will provide to a parentally placed child with a disability enrolled in a nonpublic school who has been designated to receive services, including the location of the services and any transportation necessary, consistent with rule 3301-51-08 of the Administrative Code, and is developed and implemented in accordance with rule 3301-51-08 of the Administrative Code.

(58) Special education:

(a) General.

(i) “Special education” means specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including:

(a) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and

(b) Instruction in physical education.

(ii) Special education includes each of the following, if the services otherwise meet the requirements of paragraph (B)(58)(a)(i) of this rule:

(a) Speech-language pathology services, or any other related service, if the IEP team considers the service special education rather than a related service under state standards;

(b) Travel training; and

(c) Vocational education.

(b) Individual special education terms defined. The terms in this rule are defined as follows:

(i) “At no cost” means that all specially-designed instruction is provided without charge, but does not preclude incidental fees that are normally charged to nondisabled students or their parents as a part of the regular education program.

(ii) “Physical education” means:

(a) The development of:

(i) Physical and motor fitness;

(ii) Fundamental motor skills and patterns; and

(iii) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports); and

(b) Includes special physical education, adapted physical education, movement education, and motor development.

(iii) “Specially designed instruction” means adapting, as appropriate to the needs of an eligible child under this rule, the content, methodology, or delivery of instruction:

(a) To address the unique needs of the child that result from the child’s disability; and

(b) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the school district that apply to all children.

(iv) “Travel training” means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to:

(a) Develop an awareness of the environment in which they live; and

(b) Learn the skills necessary to move effectively and safely from place to place within that environment (e.g., in school, in the home, at work, and in the community).

(v) “Vocational education” means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career not requiring a baccalaureate or advanced degree.

(59) “Special class or center based services for a preschool child with a disability” means a classroom program that provides group educational experiences to children of similar ages or developmental levels on a regularly scheduled basis and in a central location.

(60) “Supervisory and coordinator services” includes providing information and explanation regarding state and federal laws, recommended practice, and other topics essential for the delivery of services to learners with disabilities; helping school district personnel evaluate the effectiveness of special education and related services; and providing in-service education to parents and personnel involved in educating children with disabilities.

(61) “Supplementary aids and services” means aids, services, and other supports that are provided in regular education classes, other education-related settings, and in extracurricular and nonacademic settings, to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate in accordance with the requirements for least restrictive environment in rule 3301-51-09 of the Administrative Code.

(62) “Transition from Part C early intervention services” means the transition of children from the Part C programs to preschool programs as specified in rule 3301-51-11 of the Administrative Code.

(63) “Transition services” :

(a) Means a coordinated set of activities for a child with a disability that:

(i) Is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child’s movement from school to post-school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;

(ii) Is based on the individual child’s needs, taking into account the child’s strengths, preferences, and interests; and includes:

(a) Instruction;

(b) Related services;

(c) Community experiences;

(d) The development of employment and other post-school adult living objectives; and

(e) If appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.

(iii) Shall be provided by individuals who have the competencies, experiences, and training required to meet the individual student’s transition services needs, and may include job training coordinators, vocational special education coordinators, career assessment specialists, work-study coordinators or other qualified individuals.

(b) Transition services for children with disabilities may be special education, if provided as specially designed instruction, or a related service, if required to assist a child with a disability to benefit from special education.

(64) “Universal design” has the meaning given the term in Section 3 of the Assistive Technology Act of 1998, as amended and specified in the Assistive Technology Act of 2004, October 2004, 29 U.S.C. 3002.

(65) “Ward of the state” means a child who, as determined by the state where the child resides, is:

(a) A foster child;

(b) A ward of the state; or

(c) In the custody of a public child welfare agency.

Replaces: 3301-51-01

Effective: 07/01/2008

R.C. 119.032 review dates: 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3301.07 (J), 3323.02, 3323.07

Rule Amplifies: 3323.01

Prior Effective Dates: 7/2/03

(A) Each school district shall adopt and implement written policies and procedures, approved by the Ohio department of education, office for exceptional children, ensuring that a free appropriate public education (FAPE) is made available to all children with disabilities between the ages of three and twenty-one, inclusive, including children with disabilities who have been suspended or expelled from school, for whom the school district is the child’s school district of residence, as defined in paragraph (B)(54) of rule 3301-51-01 of the Administrative Code and as provided by rule 3301-51-01 of the Administrative Code.

(B) FAPE

(1) General

Each school district shall make FAPE available to all children between the ages of three and twenty-one, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in rule 3301-51-05 of the Administrative Code, for whom the school district is the child’s school district of residence.

(2) FAPE for children beginning at age three

Each school district must ensure that:

(a) The obligation to make FAPE available to each eligible child for whom the school district is the child’s school district of residence begins no later than the child’s third birthday; and

(b) An individualized education program (IEP) is in effect for the child by that date, in accordance with rule 3301-51-07 of the Administrative Code.

(c) If a child’s third birthday occurs during the summer, the child’s IEP team shall determine the date when services under the IEP will begin.

(3) Children advancing from grade to grade

(a) Each school district of residence must ensure that FAPE is available to any individual child with a disability who needs special education and related services, even though the child has not failed or been retained in a course or grade, and is advancing from grade to grade.

(b) The determination that a child described in paragraph (B)(1) of this rule is eligible under this chapter of the Administrative Code, must be made on an individual basis by the group responsible within the child’s school district of residence for making eligibility determinations.

(C) Limitation: exception to FAPE for certain ages

The obligation of the school district of residence to make FAPE available to all children with disabilities does not apply with respect to the following:

(1) Children with disabilities who have graduated from high school with a regular high school diploma;

(2) The exception in paragraph (C)(1) of this rule does not apply to children who have graduated from high school but have not been awarded a regular high school diploma;

(3) Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with rule 3301-51-05 of the Administrative Code;

(4) As used in paragraphs (C)(1) to (C)(3) of this rule, the term regular high school diploma does not include an alternative degree that is not fully aligned with Ohio’s academic content standards, such as a certificate or a general educational development credential; and

(5) Children with disabilities who are eligible under Subpart H of Part B of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, December 2004 (IDEA), but who receive early intervention services under Part C of the IDEA.

(D) FAPE: methods and payments

(1) Each school district of residence shall use whatever state, local, federal, and private sources of support are available in the school district to meet the requirements of Part B of the IDEA. For example, if it is necessary to place a child with a disability in a residential facility, a school district of residence could use joint agreements between the agencies involved for sharing the cost of that placement.

(2) Nothing in this rule relieves an insurer or similar third party from an otherwise valid obligation to provide or to pay for services provided to a child with a disability.

(3) Consistent with rule 3301-51-07 of the Administrative Code, each school district must ensure that there is no delay in implementing a child’s IEP, including any case in which the payment source for providing or paying for special education and related services to the child is being determined.

(E) Residential placement

If placement by the school district of residence in a public or private residential program is necessary to provide special education and related services to a child with a disability, the program, including non-medical care and room and board, must be at no cost to the parents of the child.

(F) Assistive technology

(1) Each school district must ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in rule 3301-51-01 of the Administrative Code, are made available to a child with a disability if required as a part of the child’s:

(a) Special education under rule 3301-51-01 of the Administrative Code;

(b) Related services under rule 3301-51-01 of the Administrative Code; or

(c) Supplementary aids and services under rule 3301-51-09 of the Administrative Code.

(2) On a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings is required if the child’s IEP team determines that the child needs access to those devices in order to receive FAPE.

(G) Extended school year services

(1) General

(a) Each school district must ensure that extended school year services are available as necessary to provide FAPE, consistent with this rule.

(b) Extended school year services must be provided only if a child’s IEP team determines, on an individual basis, in accordance with rule 3301-51-07 of the Administrative Code, that the services are necessary for the provision of FAPE to the child. Additionally, the school district shall consider the following when determining if extended school year services should be provided:

(i) Whether extended school services are necessary to prevent significant regression of skills or knowledge retained by the child so as to seriously impede the child’s progress toward the child’s educational goals; and

(ii) Whether extended school years services are necessary to avoid something more than adequately recoupable regression.

(c) In implementing the requirements of this rule, a school district shall not:

(i) Limit extended school year services to particular categories of disability; or

(ii) Unilaterally limit the type, amount, or duration of those services.

(2) Definition

As used in this rule, the term “extended school year services” means special education and related services that:

(a) Are provided to a child with a disability:

(i) Beyond the normal school year of the school district;

(ii) In accordance with the child’s IEP; and

(iii) At no cost to the parents of the child; and

(b) Meet the standards of the Ohio department of education.

(H) Nonacademic services

(1) Each school district must take steps, including the provision of supplementary aids and services determined appropriate and necessary by the child’s IEP team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

(2) Nonacademic and extracurricular services and activities shall include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the school district and assistance in making outside employment available.

(I) Physical education

(1) General

Physical education services, specially designed if necessary, must be made available to every child with a disability receiving FAPE, unless the school district enrolls children without disabilities and does not provide physical education to children without disabilities in the same grades.

(2) Regular physical education

Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to nondisabled children unless:

(a) The child is enrolled full time in a separate facility; or

(b) The child needs specially designed physical education, as prescribed in the child’s IEP.

(3) Special physical education

If specially designed physical education is prescribed in a child’s IEP, the school district responsible for serving the child must provide the services directly or make arrangements for those services to be provided through other public or private programs.

(4) Education in separate facilities

The school district responsible for serving a child with a disability who is enrolled in a separate facility must ensure that the child receives appropriate physical education services in compliance with this rule.

(J) Program options

Each school district must take steps to ensure that children with disabilities served by the school district have available to them the variety of educational programs and services available to nondisabled children in the area served by the school district, including art, music, industrial arts, consumer and homemaking education, and vocational education.

(K) Routine checking of hearing aids and external components of surgically implanted medical devices

(1) Hearing aids

Each school district must ensure that hearing aids worn in school by children with hearing impairments, including deafness, are functioning properly.

(2) External components of surgically implanted medical devices

(a) Subject to paragraph (K)(2)(b) of this rule, each school district must ensure that the external components of surgically implanted medical devices are functioning properly.

(b) For a child with a surgically implanted medical device who is receiving special education and related services under this chapter of the Administrative Code, a school district is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).

(L) Placement of children by parents when FAPE is at issue

(1) General

This rule does not require a school district of residence to pay for the cost of education, including special education and related services, of a child with a disability at a nonpublic school or facility if that school district made FAPE available to the child and the parents elected to place the child in a nonpublic school or facility. However, the school district must include that child in the population whose needs are addressed consistent with rule 3301-51-08 of the Administrative Code.

(2) Disagreements about FAPE

Disagreements between the parents and a school district of residence regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in rule 3301-51-05 of the Administrative Code.

(3) Reimbursement for nonpublic school placement

If the parents of a child with a disability, who previously received special education and related services under the authority of the school district of residence, enroll the child in a nonpublic preschool, elementary school, or secondary school without the consent of or referral by the school district of residence, a court or a hearing officer may require the school district of residence to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the school district of residence had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the state standards in this chapter of the Administrative Code that apply to education provided by the school districts.

(4) Limitation on reimbursement

The cost of reimbursement described in paragraph (L)(3) of this rule may be reduced or denied:

(a) If:

(i) At the most recent IEP team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the school district of residence to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a nonpublic school at public expense; or

(ii) At least ten business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the school district of residence of the information described in paragraph (L)(4)(a)(i) of this rule; or

(b) If prior to the parents’ removal of the child from the public school, the school district of residence informed the parents, through the notice requirements described in rule 3301-51-05 of the Administrative Code, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or

(c) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(5) Exception

Notwithstanding the notice requirement in paragraph (L)(4)(a) of this rule, the cost of reimbursement:

(a) Must not be reduced or denied for failure to provide the notice if:

(i) The school prevented the parents from providing the notice;

(ii) The parents had not received notice, pursuant to rule 3301-51-05 of the Administrative Code, of the notice requirement in paragraph (L)(4)(a) of this rule; or

(iii) Compliance with paragraph (L)(4)(a) of this rule would likely result in physical harm to the child.

(b) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if:

(i) The parents are not literate or cannot write in English; or

(ii) Compliance with paragraph (L)(4)(a) of this rule would likely result in serious emotional harm to the child.

Effective: 07/01/2008

R.C. 119.032 review dates: 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3301.07 (J), 3323.02, 3323.07

Rule Amplifies: 3323.02, 3323.07

(A) Each school district shall adopt and implement written policies and procedures approved by the Ohio department of education, office for exceptional children, that ensure all children with disabilities residing within the district, including children with disabilities who are homeless children or are wards of the state, and children with disabilities attending nonpublic schools, regardless of the severity of their disability, and who are in need of special education and related services are identified, located, and evaluated as required by the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, December 2004 (IDEA) and federal regulations at 34 C.F.R. Part 300 (October 13, 2006) pertaining to child find, including the regulations at 34 C.F.R. 300.111 and 300.646 (October 13, 2006) and as required by the provisions of this rule.

(B) Child find

(1) General

The child find policies and procedures that each school district adopts and implements under this rule shall ensure that:

(a) All children with disabilities residing in the state, including children with disabilities who are homeless children or are wards of the state, and children with disabilities attending nonpublic schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located, and evaluated; and

(b) A practical method is developed and implemented to determine which children are currently receiving needed special education and related services.

(2) Use of the term developmental delay

The following provisions apply with respect to implementing the child find requirements of this rule:

(a) The Ohio department of education has adopted in rule 3301-51-11 of the Administrative Code a definition of “developmental delay” under 34 C.F.R. 300.8(b) (October 13, 2006) and under that section has determined in rule 3301-51-01 of the Administrative Code that the term applies to children aged three through five years;

(b) A school district is not required to adopt and use the term developmental delay for any children within its jurisdiction;

(c) If a school district uses the term developmental delay for children described in rule 3301-51-01 of the Administrative Code as experiencing developmental delays, the school district must conform to both the state’s definition of that term in rule 3301-51-11 of the Administrative Code and to the age range of three through five years of age which is the age range subset that has been adopted by the Ohio department of education in rule 3301-51-01 of the Administrative Code.

(3) Other children in child find

Child find must also include:

(a) Children who are suspected of being a child with a disability under the definition of child with a disability in paragraph (B)(10) of rule 3301-51-01 of the Administrative Code and in need of special education, even though they are advancing from grade to grade; and

(b) Highly mobile children, including migrant children.

(4) Construction

Nothing in the IDEA requires that children be classified by their disability so long as each child who has a disability that is listed in the definition of child with a disability in paragraph (B)(10) of rule 3301-51-01 of the Administrative Code and who, by reason of that disability, needs special education and related services is regarded as a child with a disability under Part B of the IDEA.

(C) Disproportionality

(1) General

The Ohio department of education and each school district must provide for the collection and examination of data to determine if significant disproportionality based on race and ethnicity is occurring in the state and the school districts of the state with respect to:

(a) The identification of children as children with disabilities, including the identification of children as children with disabilities in accordance with a particular impairment described in the definition of “child with a disability” in paragraph (B)(10) of rule 3301-51-01 of the Administrative Code;

(b) The placement in particular educational settings of these children; and

(c) The incidence, duration, and type of disciplinary actions, including suspensions and expulsions.

(2) Review and revision of policies, practices, and procedures

In the case of a determination of significant disproportionality with respect to the identification of children as children with disabilities, or the placement in particular educational settings of these children, in accordance with paragraph (C)(1) of this rule, the Ohio department of education must:

(a) Provide for the review and, if appropriate, revision of the policies, procedures, and practices used in the identification or placement to ensure that the policies, procedures, and practices comply with the requirements of the IDEA.

(b) Require any school district identified under paragraph (C)(1) of this rule to reserve the maximum amount of funds under Section 613(f) of the IDEA to provide comprehensive coordinated early intervening services to serve children in the school district, particularly, but not exclusively, children in those groups that were significantly overidentified under paragraph (C)(1) of this rule; and

(c) Require the school district to publicly report on the revision of policies, practices, and procedures described under paragraph (C)(2)(a) of this rule.

(D) Data reporting

(1) Each school district shall maintain an education management information system and submit data to the Ohio department of education pursuant to rule 3301-14-01 of the Administrative Code.

(2) County boards of mental retardation and developmental disabilities and state institutions operated under the Ohio department of mental health, Ohio department of youth services, and the Ohio central school system shall submit data reports directly to the Ohio department of education on prescribed forms and in the prescribed manner.

(3) The collection and use of data to meet the requirements of this rule are subject to the confidentiality requirements in rule 3301-51-04 of the Administrative Code.

Replaces: 3301-51-03

Effective: 07/01/2008

R.C. 119.032 review dates: 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3301.07 (J), 3323.02, 3323.07

Rule Amplifies: 3323.02, 3323.07

Prior Effective Dates: 7/1/02

(A) Each school district, county board of mental retardation and developmental disabilities (county board of MR/DD), and other educational agency shall adopt and implement written policies and procedures, approved by the Ohio department of education, office for exceptional children, that afford parents the opportunity to examine records in accordance with the procedures of 34 C.F.R. 300.610 to 300.628 (October 13, 2006) and ensure protection of the confidentiality of any personally identifiable information in regard to the collection, use, storage, disclosure, retention, and destruction of that information.

(B) Definitions

The following terms are defined as they are used in this rule:

(1) “Destruction” means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

(2) “Education records” means the type of records covered under the definition of education records in 34 C.F.R. Part 99 (July 1, 2005) (the regulations implementing the Family Educational Rights and Privacy Act of 1974, August 1974, 20 U.S.C. 1232g (FERPA)).

(3) “Participating agency” means any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the Individuals with Disabilities Education Act, as amended and specified in the Individuals with Disabilities Education Improvement Act of 2004, December 2004 (IDEA).

(C) Notice to parents

(1) The school district, county board of MR/DD, and other educational agency must give notice that is adequate to fully inform parents about the requirements to ensure that the school district, county board of MR/DD, and other educational agency comply with this rule related to protecting the confidentiality of any personally identifiable information collected, used, or maintained under Part B of the IDEA. The notice shall include:

(a) A description of the extent that the notice is given in the native languages of the various population groups in the school district, county, or other area served;

(b) A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the state intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

(c) A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

(d) A description of all of the rights of parents and children regarding this information, including the rights under FERPA and implementing regulations in 34 C.F.R. Part 99 (July 1, 2005).

(2) Before any major identification, location, or evaluation activity, the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the school district, county board of MR/DD, or other area served of the activity.

(D) Access rights

(1) Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this rule. The agency must comply with a request without unnecessary delay and before any meeting regarding an individualized education program (IEP), or any hearing pursuant to rule 3301-51-05 of the Administrative Code or resolution session pursuant to rule 3301-51-05 of the Administrative Code, and in no case more than forty-five days after the request has been made.

(2) The right to inspect and review education records under this rule includes:

(a) The right to a response from the participating agency to reasonable requests for explanations and interpretations of the records;

(b) The right to request that the agency provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and

(c) The right to have a representative of the parent inspect and review the records.

(3) An agency may presume that the parent has authority to inspect and review records relating to the parent’s child unless the agency has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation, and divorce.

(E) Record of access

Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of the IDEA (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

(F) Records on more than one child

If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

(G) List of types and locations of information

Each participating agency must provide parents on request a list of the types and locations of education records collected, maintained, or used by the agency.

(H) Fees

(1) Each participating agency may charge a fee for copies of records that are made for parents under this rule if the fee does not effectively prevent the parents from exercising their right to inspect and review those records.

(2) A participating agency shall not charge a fee to search for or to retrieve information under this rule.

(I) Amendment of records at parent’s request

(1) A parent who believes that information in the education records collected, maintained, or used under this rule is inaccurate or misleading or violates the privacy or other rights of the child may request the participating agency that maintains the information to amend the information.

(2) The agency must decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request.

(3) If the agency decides to refuse to amend the information in accordance with the request, it must inform the parent of the refusal and advise the parent of the right to a hearing under this rule.

(J) Opportunity for a hearing

The agency must, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child.

(K) Result of hearing

(1) If, as a result of the hearing, the agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must amend the information accordingly and so inform the parent in writing.

(2) If, as a result of the hearing, the agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it must inform the parent of the parent’s right to place in the records the agency maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.

(3) Any explanation placed in the records of the child under this rule must:

(a) Be maintained by the agency as part of the records of the child as long as the record or contested portion is maintained by the agency; and

(b) If the records of the child or the contested portion is disclosed by the agency to any party, the explanation must also be disclosed to the party.

(L) Hearing procedures

A hearing held under this rule must be conducted according to the procedures in 34 C.F.R. 99.22 (July 1, 2005). The records hearing shall be held within a reasonable period of time after the school district, county board of MR/DD or other educational agency has received the request.

(1) The parents shall be given notice of the date, time, and place reasonably in advance of the hearing.

(2) The records hearing shall be conducted by any individual, including an official of the school district, county board of MR/DD or other educational agency who does not have a direct interest in the outcome of the hearing.

(3) The parents shall be afforded a full and fair opportunity to present evidence relevant to the content of the child’s education records and the information the parent believes is inaccurate or misleading or violates the privacy or other rights of the child.

(4) The parents may, at their own expense, be assisted or represented by one or more individuals of their choice, including an attorney.

(5) The school district, county board of MR/DD or other educational agency shall make its decision in writing within a reasonable period of time after the hearing.

(6) The decision of the school district, county board of MR/DD or other educational agency shall be based solely upon the evidence presented at the hearing and shall include a summary of the evidence and the reasons for the decision.

(M) Consent

(1) Parental consent must be obtained before personally identifiable information is disclosed to parties, other than officials of participating agencies in accordance with this rule, unless the information is contained in education records, and the disclosure is authorized without parental consent under 34 C.F.R. Part 99 (July 1, 2005).

The parent’s consent must be in writing, signed, and dated and must:

(a) Specify the records to be disclosed;

(b) State the purpose of the disclosure; and

(c) Identify the party or class of parties to whom the disclosure may be made.

(2) Except as provided in paragraphs (M)(2)(a) and (M)(2)(b) of this rule, parental consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of this rule and 34 C.F.R. Part 300 (October 13, 2006).

(a) Parental consent, or the consent of an eligible child who has reached the age of majority under Ohio law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services in accordance with rule 3301-51-07 of the Administrative Code.

(b) If a child is enrolled, or is going to enroll in a nonpublic school that is not located in the school district of the parent’s residence, parental consent must be obtained before any personally identifiable information about the child is released between officials in the school district where the nonpublic school is located and officials in the school district of the parent’s residence.

(N) Safeguards

(1) Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

(2) One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.

(3) All persons collecting or using personally identifiable information must receive training or instruction regarding the policies and procedures of the school district, county board of MR/DD, and other educational agency under 34 C.F.R. Part 99 (July 1, 2005).

(4) Each participating agency must maintain for public inspection a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

(O) Destruction of information

(1) The public agency must inform parents when personally identifiable information collected, maintained, or used under this rule is no longer needed to provide educational services to the child.

(2) The information must be destroyed at the request of the parents. However, a permanent record of a student’s name, address, telephone number, grades, attendance record, classes attended, grade level completed, and year completed shall be maintained without time limitation.

(P) Children’s rights

(1) The school district, county board of MR/DD, and other educational agency must have in effect policies and procedures regarding the extent to which children are afforded rights of privacy similar to those afforded to parents, taking into consideration the age of the child and type or severity of disability.

(2) Under the regulations for FERPA in 34 C.F.R. 99.5(a) (July 1, 2005), the rights of parents regarding education records are transferred to the student at age eighteen.

(3) If the rights accorded to parents under Part B of the IDEA are transferred to a student who reaches the age of majority, consistent with rule 3301-51-05 of the Administrative Code, the rights regarding education records under this rule must also be transferred to the student. However, the school district must provide any notice required under rule 3301-51-05 of the Administrative Code to the student and the parents.

(Q) Disciplinary information

(1) A school district, county board of MR/DD, and other educational agency shall include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is included in, and transmitted with, the student records of nondisabled children.

(2) When a child transfers from one school, county board of MR/DD, or other educational agency to another, the transmission of any of the child’s records must include both the child’s current IEP and any statement of current or previous disciplinary action that has been taken against the child.

(3) The statement required in paragraphs (Q)(1) and (Q)(2) of this rule:

(a) Shall specify the circumstances that resulted in the disciplinary action and provide a description of the disciplinary action taken if the disciplinary action was taken because the child:

(i) Carried a weapon to or possessed a weapon at school, on school premises, or to or at a school function under the jurisdiction of a school district, county board of MR/DD, and other educational agency;

(ii) Knowingly possessed or used illegal drugs, or sold or solicited the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of a school district, county board of MR/DD, and other educational agency; or

(iii) Inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of a school district, county board of MR/DD, and other educational agency.

(b) Shall include any information that is relevant to the safety of the child and other individuals involved with the child; and

(c) May include a description of any other behavior engaged in by the child that required disciplinary action, and a description of the disciplinary action taken.

(R) Referral to and action by law enforcement and judicial authorities

(1) Rule of construction

Nothing in this rule prohibits a school district, county board of MR/DD, and other educational agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability.

(2) Transmittal of records

(a) A school district, county board of MR/DD, and other educational agency reporting a crime committed by a child with a disability must ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.

(b) A school district, county board of MR/DD, and other educational agency reporting a crime under this rule shall transmit copies of the child’s special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act of 1974, August 1974, 20 U.S.C. 1232g (FERPA).

Replaces: 3301-51-04

Effective: 07/01/2008

R.C. 119.032 review dates: 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 3301.07, 3301.07 (J), 3323.02

Rule Amplifies: 3323.02, 3323.07

Prior Effective Dates: 7/1/02

(A) Each school district shall adopt and implement written policies and procedures approved by the Ohio department of education, office for exceptional children, to ensure that children with disabilities and their parents are provided procedural safeguards.

(B) Each school district of residence shall adopt and implement written policies and procedures approved by the Ohio department of education, office for exceptional children, to ensure that children with disabilities and their parents and public agencies are provided an opportunity to resolve disputes regarding identification, evaluation, or educational placement of a child with a disability or the provision of a free appropriate public education (FAPE).

(C) Parental consent

(1) Parental consent for initial evaluation

(a) The school district proposing to conduct an initial evaluation to determine if a child qualifies as a child with a disability under the definition of “child with a disability” in rule 3301-51-01 of the Administrative Code must, after providing notice consistent with the requirements of this rule, obtain informed consent, consistent with the definition of “consent” in rule 3301-51-01 of the Administrative Code, from the parent of the child before conducting the evaluation.

(b) Parental consent for initial evaluation must not be construed as consent for initial provision of special education and related services.

(c) The school district must make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability.

(d) For initial evaluations only, if the child is a ward of the state and is not residing with the child’s parent, the school district is not required to obtain informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability if:

(i) Despite reasonable efforts to do so, the school district cannot discover the whereabouts of the parent of the child;

(ii) The rights of the parents of the child have been terminated in accordance with state law; or

(iii) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the child.

(e) If the parent of a child enrolled in a school district or seeking to be enrolled in a school district does not provide consent for initial evaluation under this rule, or the parent fails to respond to a request to provide consent, the school district of residence may, but is not required to, pursue the initial evaluation of the child by utilizing the procedural safeguards in Subpart E of Part B of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004, December 2004 (IDEA) (including the mediation procedures or the due process procedures under this rule).

The school district does not violate its obligation under rule 3301-51-03 of the Administrative Code for child find and under rule 3301-51-06 of the Administrative Code for evaluations if it declines to pursue the evaluation.

(2) Parental consent for services

(a) A school district of residence that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.

(b) The school district of residence must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.

(c) If the parent of a child fails to respond or refuses to consent to services under paragraph (C)(2)(a) of this rule, the school district of residence may not use the procedures in Subpart E of Part B of the IDEA, including the mediation procedures or the due process procedures under this rule, in order to obtain agreement or a ruling that the services may be provided to the child.

(d) If the parent of the child refuses to consent to the initial provision of special education and related services, or the parent fails to respond to a request to provide consent for the initial provision of special education and related services, the school district of residence:

(i) Will not be considered to be in violation of the requirement to make available FAPE to the child for the failure to provide the child with the special education and related services for which the school district of residence requests consent; and

(ii) Is not required to convene an individualized education program (IEP) team meeting or develop an IEP under rule 3301-51-07 of the Administrative Code for the child for the special education and related services for which the school district of residence requests such consent.

(3) Parental consent for reevaluations

(a) Subject to paragraph (C)(3)(b) of this rule, each school district:

(i) Must obtain informed parental consent, in accordance with paragraph (C)(1) of this rule, prior to conducting any reevaluation of a child with a disability.

(ii) If the parent refuses to consent to the reevaluation, the school district of residence may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (C)(1)(e) of this rule.

(iii) The school district of residence does not violate its obligation under rule 3301-51-03 of the Administrative Code for child find and under rule 3301-51-06 of the Administrative Code for reevaluations if it declines to pursue the reevaluation.

(b) The informed parental consent described in paragraph (C)(3)(a) of this rule need not be obtained if the school district can demonstrate that:

(i) It made reasonable efforts to obtain such consent; and

(ii) The child’s parent has failed to respond.

(4) Parental consent for a change of placement

(a) A “change of placement” means a change from one option on the continuum of alternative placements to another.

(b) Informed parental consent must be obtained before making a change of placement of a child with a disability.

(c) Informed parental consent need not be obtained before:

(i) A change of placement if the school district of residence can demonstrate that it has made reasonable efforts, as described in rule 3301-51-07 of the Administrative Code, to obtain consent, and the child’s parent has failed to respond.

(ii) A change of placement of a child with a disability that is the result of a disciplinary action taken in accordance with paragraph (K)(20) of this rule.

(iii) Reviewing existing data as part of an evaluation or a reevaluation; or

(iv) Administering a test or other evaluation that is administered to all children unless, before administration of that test or evaluation, consent is required of parents of all children.

(5) Other consent requirements

(a) A school district may not use a parent’s refusal to consent to one service or activity under paragraph (C)(1) or (C)(4)(b) of this rule to deny the parent or child any other service, benefit, or activity of the school district, except as required by this rule.

(b) To meet the reasonable efforts requirement in paragraphs (C)(1)(c), (C)(1)(d)(i), (C)(2)(b), (C)(3)(b)(i), and (C)(4)(c)(i) of this rule, the school district must document its attempts to obtain parental consent using the procedures in rule 3301-51-07 of the Administrative Code.

(D) Transfer of parental rights at age of majority

(1) When a child with a disability reaches the age of majority under Ohio law (eighteen years of age) that applies to all children (except for a child with a disability who has been determined to be incompetent under Ohio law):

(a) The school district of residence must provide the notice required by this rule to both the child and the parents;

(b) All rights accorded to parents under Part B of the IDEA and Chapter 3323. of the Revised Code transfer to the child; and

(c) All rights accorded to parents under Part B of the IDEA and Chapter 3323. of the Revised Code transfer to children who are incarcerated in an adult or juvenile, state or local correctional institution.

(2) When a child with a disability (except for a child with a disability who has been determined to be incompetent under Ohio law) reaches eighteen years of age, the school district of residence must notify the child and the parents of the transfer of rights.

(E) Surrogate parents

(1) General

Each school district must ensure that the rights of a child are protected when:

(a) No parent (as defined in rule 3301-51-01 of the Administrative Code) can be identified;

(b) The school district, after reasonable efforts, cannot locate a parent;

(c) The child is a ward of the state under the laws of Ohio; or

(d) The child is an unaccompanied homeless youth as defined in Section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)), as amended and specified in Title X, Part C, of the No Child Left Behind Act of 2001, January 2002, 42 U.S.C. 11431.

(2) Duties of the school district

The duties of a school district of residence under paragraph (E)(1) of this rule include the assignment of an individual to act as a surrogate for the parents.

This must include a method:

(a) For determining whether a child needs a surrogate parent; and

(b) For assigning a surrogate parent to the child.

(3) Wards of the state

In the case of a child who is a ward of the state, the surrogate parent alternatively may be appointed by the judge overseeing the child’s case, provided that the surrogate meets the requirements in paragraphs (E)(4)(c)(i), (E)(4)(c)(iv), and (E)(5) of this rule.

(4) Criteria for selection of surrogate parents

(a) A surrogate parent shall be assigned as soon as possible but no later than thirty days of the date that it is determined that the child is in need of the surrogate.

(b) The school district of residence maintains the ultimate responsibility for the assignment of a surrogate parent. If requested by the school district of residence and mutually agreed upon, the school district of attendance, county board of mental retardation and developmental disabilities (county board of MR/DD), or other educational agency may appoint the surrogate parent.

(c) The school district of residence must ensure that a person selected as a surrogate parent:

(i) Is not an employee of the Ohio department of education, the school district, or any other agency that is involved in the education or care of the child;

(ii) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents;

(iii) Has knowledge and skills that ensure adequate representation of the child; and

(iv) Has successfully completed the training prescribed by the Ohio department of education prior to acting on behalf of the child.

(5) Non-employee requirement; compensation

A person who is otherwise qualified to be a surrogate parent under paragraph (E)(4) of this rule is not an employee of the school district solely because the person is paid by the school district to serve as a surrogate parent.

(6) Civil damages

Pursuant to section 3323.051 of the Revised Code, neither the surrogate parent nor the authority that assigned the surrogate parent shall be liable in civil damages for acts of the surrogate parent unless such acts constitute willful or wanton misconduct,

(7) Appointment of surrogate by a judge

If a surrogate parent is appointed by a judge overseeing the child’s case, upon the request of the judge, the school district of residence will confirm that the person appointed meets the requirements in paragraphs (E)(4)(c)(i), (E)(4)(c)(iv), and (E)(5) of this rule.

(8) Child who has reached age of majority

A child who has reached the age of majority may request a surrogate parent.

(9) Unaccompanied homeless youth

In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (E)(4)(c)(i) of this rule, until a surrogate parent can be appointed that meets all of the requirements of paragraph (E)(4) of this rule.

(10) Surrogate parent responsibilities

The surrogate parent may represent the child in all matters relating to:

(a) The identification, evaluation, and educational placement of the child; and

(b) The provision of FAPE to the child.

(F) Opportunity to examine records; parent participation in meetings

(1) Opportunity to examine records

The parents of a child with a disability must be afforded, in accordance with the procedures of rule 3301-51-04 of the Administrative Code, an opportunity to inspect and review all education records with respect to:

(a) The identification, evaluation, and educational placement of the child; and

(b) The provision of FAPE to the child.

(2) Parent participation in meetings

(a) The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to:

(i) The identification, evaluation, and educational placement of the child; and

(ii) The provision of FAPE to the child.

(b) Each school district must provide notice consistent with the parent participation requirements of rule 3301-51-07 of the Administrative Code to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (F)(2)(a) of thi