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OHIO ASSOCIATION OF PUPIL SERVICES ADMINISTRATORS

Quest Conference Center

Westerville, Ohio

September 17, 2021

“What’s New and What You Need to Do Now”

Presented by

Brian J. DeSantis, Esq.

[email protected]

BUDGET BILL (HB 110) and SCHOLARSHIP PROGRAM ISSUES

I. Graduation Requirements

Continuing law provides that, beginning with the Class of 2023, students must

demonstrate competency in Algebra I and English Language Arts II end-of-course exams

by attaining a “competency score.” If a student does not attain a competency score, then

the student may use an alternative demonstration of competency.

A. Exam Exemption for Certain Students with IEPs.

HB 110 exempts a student who has an IEP from demonstrating competency if the

IEP expressly exempts the student from that requirement and the student satisfies

certain conditions.

1. The student must take the Algebra I and ELA II end-of-course exams (or

alternate assessments).

2. If the student does not attain a competency score (or an approved score on

an alternate assessment), the student must be offered and must receive

remedial support from the district.

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3. The student must retake the end-of-course exam (or alternate assessment).

4. If the student still does not attain a competency score (or an established

score), the student is then exempt from the requirement to demonstrate

competency.

B. Other alternative methods to demonstrating competency—that are not unique to

students with IEPs—were also included in the Budget Bill.

II. Autism and Jon Peterson Scholarship

Under continuing law, students are eligible to receive an Autism Scholarship or a Jon

Peterson Special Needs Scholarship. These scholarships enable a student to use public

funds and enroll in a private school or obtain services from a provider.

A. Overview of Scholarship Programs.

1. Autism Scholarship.

a. Maximum value FY22: $31,500; FY23: $32,445 (previously

$27,000). Scholarships will be directly funded.

b. Cap on the number of scholarships: None.

2. Jon Peterson Scholarship.

a. Maximum scholarship amounts continue to vary by category.

Scholarships will be directly funded.

b. Cap on the number of scholarships: eliminated (the prior cap was

5% of students with special needs).

3. EdChoice Scholarship.

a. Student eligibility is based on (1) family income or (2) the

student’s home school performance. The Budget Bill further

expanded eligibility based on the home school’s performance.

b. Cap on the number of scholarships: None.

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B. Transferability to EdChoice Scholarship.

1. Eligibility for Autism and Jon Peterson Special Needs Scholarships is

premised on the child being identified as a child with a disability.

2. Under HB 110, children who no longer require special education will be

eligible for a performance-based EdChoice Scholarship.

C. Common Issues with Autism/Jon Peterson Scholarship.

1. Parents demanding specific categories.

a. The IEP team should identify a student under the category that the

IEP team determines is appropriate, not the category requested by

the parent.

b. If a parent disagrees with the evaluation, the parent may file a

complaint with ODE’s Office for Exceptional Children.

2. If a parent or provider requests additional goals or services be included (or

excluded) at the provider’s request, what should the district do?

a. The IEP’s language remains an IEP team decision and should be

written to make FAPE available to the student. It should be

written as if the student is enrolled at the district (not placed with

the provider).

b. The provider and the parent can agree to additional services and

use the scholarship to seek reimbursement for additional services.

These services do not become part of the IEP.

3. The district of residence is required to provide the child with an annual

IEP that makes a free appropriate public education (FAPE) available to the

child.

4. Evaluations and IEPs shall be completed for scholarship students within

the timeframes set forth under Ohio’s IDEA Operating Standards.

5. If, “at any time,” a parent of a child participating in the scholarship

program decides to return the child to the district of residence, the district

of residence shall be required to provide the child with FAPE.

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D. Autism/Jon Peterson Scholarship – Recent Cases.

1. ACLSD - CP 0056-2021 (July 2021).

a. Background.

A student with OHI was attending an out-of-state virtual private

school. On March 12, 2021, the parent emailed the district of

residence asking for the annual IEP meeting for purposes of

applying to the Jon Peterson Scholarship. The District declined,

indicating that since the student was home-schooled, the

scholarship rules did not apply and a renewed IEP was not

required. Later, the IEP team met to discuss the annual IEP. On

May 4, 2021, the parent emailed the District stating that, after

talking to the scholarship provider, she had no issue with the IEP

so long as the student’s category changed from OHI to Autism.

The District responded that the triennial re-evaluation was not due

until fall of 2021 and a “complete evaluation process” would be

required since “all of the information in [the student’s] record

[was] over a year old.” The parent and the District engaged in a

back and forth on when to evaluate the student. On May 18, 2021,

the parent emailed a letter from the private psychiatrist that stated

that student had a diagnosis of autism. On June 2, 2021, the parent

again asked for an early evaluation. The District responded that it

needed to do an entire evaluation, that it could not just change the

category. The District then stated that it would schedule a meeting

for planning the evaluation, but that it was concerned that it did not

have an opportunity to observe the student in an educational

environment.

b. Holding.

The District did not violate the requirement for re-evaluation. The

regulations state that a district must ensure a re-evaluation of a

child is conducted, not more than once per year if the child’s

parent or teacher requests an evaluation. The regulation does not

provide a timeline for when a district must begin the evaluation

process upon a parent’s request. The District did not violate IDEA

as it agreed to evaluate consistent with IDEA. The District also

preferred to wait until the student could be observed in a school

building (which would occur within the year and prior to the

expiration of the student’s ETR).

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However, the District violated IDEA by denying the parent’s

request for a meeting to update the IEP.

The District also violated IDEA by not renewing the IEP in a

timely manner. The 2020-2021 IEP had expired before the team

was able to renew the 2021-2022 IEP.

c. What you need to know and other takeaways.

(1) In this case the parent was seeking to home school her

child. Remember, a parent must complete the proper

paperwork for the child to be homeschooled under Ohio

law. O.A.C. 3301-34-03. The request must be approved

by the superintendent. Id.

(2) Board policies often contain additional procedural

requirements for home school.

(3) There have been predictions home school requests will

increase as districts return to school, require/don’t require

masks, and/or require/don’t require vaccines.

2. PLSD 120 LRP 8230 (January 31, 2020).

a. Background.

A student’s 2016 ETR stated that a student qualified under the

category of autism. For the 2019-2020 school year, the student

utilized the Autism Scholarship and enrolled in a private school.

The student’s IEP for the 2019-2020 school year had one goal –

“classroom skills.” The student’s doctor said he “has Asperger’s

Syndrome (Autism Spectrum)” and recommend that the student

have an IEP. The District conducted its triennial re-evaluation for

the student and determine that he was no longer eligible for special

education. The re-evaluation showed he performed at or above

grade level in 10-11 academic skills, improved social/emotional

skills, and need little help maintain his focus. The nonpublic

teacher stated the student’s “extreme lack of social skills

occasionally interferes with his work and behavior.” The

nonpublic IS stated that “1:1 behavioral/social skills interventions

improved daily classroom behavior and the student needed

planning and practicing of communication strategies.” The School

Psychologist performed a classroom observation and concluded

that he “had age-appropriate attention.” A number of assessments

were conducted.

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The parent made a number of accusations, including that the

District did not consider the doctor’s medical diagnosis and did not

consider the non public teacher or IS’s information.

b. Holding.

The Department found no evidence that the District violated IDEA

when it determined that the student was no longer eligible for

special education. The District followed all procedures for

evaluations and re-evaluations.

c. What you need to know and other takeaways.

(1) This State complaint provides an example that a medical

diagnosis does not always control.

(2) The State evaluated whether the District complied with

procedures, which it did.

(3) Private school personnel can pose challenges to IEP teams

and may have different interests.

RESTRAINT AND SECLUSION

(O.A.C. 3301-35-15)

I. Background

A. The Restraint and Seclusion Rule (O.A.C. 3301-35-15) was last modified on June

22, 2015.

B. On June 24, 2021, the Rule was amended.

1. PBIS Framework is defined.

2. Definitions have been modified.

3. New reporting requirements.

4. New meeting requirements after 3 incidences.

5. Training requirements.

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II. Positive Behavior Intervention and Supports Framework

The Amended Rule establishes a defined PBIS framework.

A. The Old Rule addressed PBIS in one sentence.

“Each district shall implement positive behavior interventions and supports on a

system-wide basis.”

B. The Amended Rule establishes a comprehensive PBIS framework that spans

several paragraphs.

1. The Framework must:

a. Include a decision-making framework that guides selection,

integration, and implementation of evidence-based academic and

behavior practices for improving academic and behavior outcomes

for all students.

b. Include the following integrated elements:

(1) Data-based decision making;

(2) Evidence-based practices along a multi-tiered continuum of

supports;

(3) Systems that enable accurate and sustainable

implementation of practices; and

(4) Progress monitoring for fidelity and target outcomes.

2. Standards for a school district’s implementation of positive behavior

intervention and supports frameworks.

a. Student personnel must receive professional development;

b. Explicit instruction of school-wide behavior expectations;

c. Consistent systems of acknowledging and correcting behaviors;

d. Teaching environments designed to eliminate behavior triggers;

and

e. Family and community involvement.

3. Professional Development.

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III. General Rules for Restraint and Seclusion

A. Restraint.

1. The circumstances for when restraint may be used have not changed. See

O.A.C. 3301-35-15(E)(1) (describing when restraint may be used).

2. The definitions for what constitutes restraint have been modified (changes

in strikeout and bold).

a. “‘Physical restraint’ means the use of physical contact in a way

that immobilizes or reduces the ability of an individual to move the

individual’s arms, legs, body, or head freely.” Such term does not

include a physical escort, mechanical restraint, or chemical

restraint. Physical restraint does not include brief physical contact

for the following or similar purposes:

(1) To break up a fight;

(2) To knock a weapon away from a student’s possession;

(3) To calm or comfort;

(4) To assist a student in completing a task/response if the

student does not resist the contact; or

(5) To prevent imminent risk of injury to the student or

others.

(6) To prevent an impulsive behavior that threatens the

student’s immediate safety (e.g. running in front of a car).”

b. “‘Chemical restraint’ means a drug or medication used to control a

student’s behavior or restrict freedom of movement.” that is not:

Chemical restraint is prohibited by school districts in

accordance with paragraph D of this rule. Chemical restraint,

as used under this rule, does not apply to a drug or medication

that is:

(1) Prescribed by a licensed physician, or other qualified health

professional acting under the scope of the professional’s

authority under Ohio law, for the standard treatment of a

student's medical or psychiatric condition; and

(2) Administered as prescribed by the licensed physician or

other qualified health professional acting under the scope of

the professional’s authority under Ohio law.”

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3. The Amended Rule clarifies and expands the prohibition of prone

restraints by adding the following language:

a. “‘Prone restraint’ means physical or mechanical restraint while the

individual is in the face-down position for an extended period of

time.”

b. “Prone restraint, including any physical restraint that obstructs the

airway of the student, or any physical restraint that impacts a

student’s primary mode of communication, is prohibited. A

statement to this effect is to be included in the school district’s

policy. Student personnel may use physical restraint only as a last

resort and in accordance with local policy and the requirements of

this rule.”

B. Seclusion.

1 The definition of seclusion has not changed.

2. The circumstances for when seclusion may be used have not changed. See

O.A.C. 3301-35-15(F)(1) for the description.

3. The circumstances for when seclusion may not be used have changed.

Seclusion may not be used (changes in strikeout and bold):

a. For punishment or discipline;

b. For the convenience of staff;

c. As a substitute for an educational program;

d. As a substitute for inadequate staffing;

e. As a substitute for staff training in positive behavior

interventions and supports framework and crisis management;

f. As a means to coerce, retaliate, or in a manner that endangers

a student; or

g. As a substitute for other less restrictive means of assisting a

student in regaining control, such that it is reflective of the

cognitive, social and emotional level of the student.

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C. Conditions on using restraint and seclusion.

The Amended Rule adds new conditions to the use of physical restraint and

seclusion on compliance with six items. (O.A.C. 3301-35-15(D)(2).) Under the

Amended Rule, staff must:

1. Be appropriately trained to protect the care, welfare, dignity, and safety of

the student;

2. Continually observe the student in restraint and seclusion for indications

of physical or mental distress and seek immediate medical assistance if

there is a concern;

3. Use communication strategies and research-based de-escalation techniques

in an effort to help the student regain control;

4. Remove the student from physical restraint or seclusion immediately when

the immediate risk of physical harm to self or others has dissipated;

5. Conduct a de-briefing including all involved staff to evaluate the trigger

for the incident; staff response, and methods to address the student’s

behavioral needs; and

6. Complete all mandatory reports and document staff’s observations of the

student.

IV. Requirements After 3rd Incident of Restraint or Seclusion

The Amended Rule establishes new requirements to follow after the third incident of

restraint or seclusion in a school year. O.A.C. 3301-35-15(G).

A. If a student has been found eligible for special education or has a 504 plan, then

the IEP or 504 team must meet within 10 school days of the 3rd incident. The

IEP/504 team will “consider” (1) the need to conduct/develop an FBA or BIP; or

amend an existing FBA or BIP.

1. Note the use of the term “consider.” Consider has a dictionary definition

of to “think carefully about something.”

a. Consider does not mean “require.” However, if team decides not

to conduct an FBA or develop a BIP, a basis is needed.

b. Document the reason and the discussion.

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2. Compare to IDEA’s requirement to “consider” the results of an IEE.

B. If a student has not been found eligible for special education and does not have a

504 plan, then a team must meet within 10 school days of the 3rd incident to

discuss the need to conduct or review a FBA or BIP. The team must consist of:

parent, administrator/designee, student’s teacher, staff member involved in the

incident (if not already invited), and “other appropriate members.”

C. The Amended Rule is not a part of IDEA. Districts should not seek shelter in the

Amended Rule when claiming that FAPE had been provided.

1. The Amended Rule clarifies that an FBA/BIP may still be completed if a

student has fewer than 3 incidents of restraint or seclusion.

2. The Amended Rule also clarifies that the Rule is not “meant to prevent a

school district from conducting any evaluations or other obligations they

feel appropriate under” IDEA.

D. The Amended Rule does not require a meeting after every third incident (i.e. 3, 6,

9, 12th incident).

V. Training and Professional Development

Requirement Old Rule New Rule

Training Evidence-based crisis

management and de-

escalation techniques.

Evidence-based crisis management and de- escalation

techniques, as well as the safe use of physical restraint and

seclusion.

Number of

Personnel

“appropriate number

of personnel in each

building”

“appropriate number of personnel in each building”

Frequency of

Training/PD

Not specified Annually

Training

Requirements

Not Specified -Proactive measures to prevent the use of seclusion or

restraint;

-Crisis management;

-Documentation and communication about the restraint or

seclusion with appropriate parties;

-The safe use of restraint and seclusion;

-Instruction and accommodation for age and body size

diversity;

-Directions for monitoring signs of distress during and

following physical control;

-Debriefing practices and procedures;

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-Face-to-face training;

-Allow for a simulated experience of administering and

receiving physical restraint

Student

Personnel

must be

trained on

specified

functions

None Specified. -Identify conditions such as: where, under what conditions,

with whom, and why specific inappropriate behavior may

occur

-use of preventative assessments that include (i) review of

existing data, (ii) input from parents, family members and

students; (iii) examination of previous and existing BIPs.

Proficiency

Requirement

None Specified. Ensure that participants will demonstrate proficiency in

items described above.

Documentation

Requirements

None Specified. Written/electronic documentation of:

-Name, position, & building assignment of trained

individuals

-name, position, & credential of trainers

-when training was completed

-what protocols, techniques, & materials were included.

VI. More Specific Reporting and Notification Requirements

A. Internal Reporting and Parent Reporting (O.A.C. 3301-35-13(K)(1)).

1. Old Rule.

Any incident of seclusion or restraint shall be immediately reported to

building and the parent. Any incident of seclusion or restraint shall be

documented in a written report that is made available to the parent within

twenty-four hours and that is maintained by the school district.

2. New Rule (changes are in strikeout and bold).

Any incident of seclusion or restraint shall be immediately reported to

building supervision administration and the parent and also be

documented in a written report that is issued to the parent

immediately or within twenty-four hours. Any incident of seclusion or

restraint shall be documented in a written report that is made available to

the parent within twenty-four hours and that is maintained by the school

district. This written report is thereafter maintained by the school

district, including the county board of developmental disabilities or

the educational service center in the event the district delegates this

responsibility.

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3. From an Attorney’s Perspective:

a. What must the written report include?

(1) The rule does not define what the report must include.

ODE’s guidance document treats this area inconsistently.

(2) In one FAQ, ODE suggests that a district may determine

what to use and suggests the model debriefing form be

used. In another FAQ addressing what must be

communicated to the parent, it says that the “written report

should provide a summary of the incident, staff members

involved, the intervention used, and the final outcome of

the situation.”1

b. Video recordings.

Can school personnel video record a student in restraint or

seclusion as a means of documentation?

(1) ODE Guidance: “This determination is made at the local

level by each […] district and should be noted in their

policies.”

(2) An attorney’s perspective on video recordings.

(3) Did any surveillance cameras (or Zoom) capture the

incident?

(4) Did students or others record the incident?

4. Reporting to “building” administration.

B. Reporting to the Department of Education (O.A.C. 3301-35-13(K)(2)).

1. The Amended Rule maintains the existing reporting requirement:

A school district shall annually report information regarding its use of

restraint and seclusion to the Ohio Department of Education in the form

and manner as prescribed by the Department.

1 http://education.ohio.gov/getattachment/Topics/Student-Supports/PBIS-Resources/Policy-Positive-Behavior-

Interventions-and-Support/FINAL-District-FAQ-9-10-21.pdf.aspx?lang=en-US

http://education.ohio.gov/getattachment/Topics/Student-Supports/PBIS-Resources/Policy-Positive-Behavior-Interventions-and-Support/FINAL-District-FAQ-9-10-21.pdf.aspx?lang=en-US

http://education.ohio.gov/getattachment/Topics/Student-Supports/PBIS-Resources/Policy-Positive-Behavior-Interventions-and-Support/FINAL-District-FAQ-9-10-21.pdf.aspx?lang=en-US

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2. The Amended Rule clarifies reporting obligations if a district uses an ESC

or the county board of developmental disability:

a. Report all information on the use of restraint and seclusion by the

county board or ESC, or

b. Authorize the county board or ESC to report information use of

restraint and seclusion directly.

3. New Rule adds a penalty for failure to report to the Department:

The failure to report “may subject the school district to a corrective action

plan and/or a potential reduction in funding.”

VII. District Complaint Process

The Amended Rule modifies the complaint procedures that existed previously.

A. The Amended Rule continues to include a written procedure for a parent to

present written complaints to the superintendent to initiate a complaint

investigation regarding restraint or seclusion. Within 30 days of filing a

complaint, the district must make reasonable efforts to have an in-person follow

up meeting with the parent.

B. The procedure is now required to inform the parent of additional options for

complaints, including:

1. Law enforcement.

2. County JFS.

3. ODE.

C. The District is required to provide an annual notice which informs the parent of

the policies or procedures related to PBIS, physical restraint and seclusion,

including the local complaint process.

VIII. ODE Complaint Process

The Rule establishes a new process for a parent to file a complaint with ODE.

A. The complaint must relate to the district violating one of the following:

1. Multiple incidents of restraint or seclusion.

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2. Training or Professional Development.

3. Policies and procedures.

4. Monitoring.

5. Reporting.

B. Statute of limitations.

The complaint must allege a violation that occurred not more than one year prior

to the date that the complaint is received.

C. Timelines / Procedures.

1. Complaint is filed with ODE / District.

2. ODE has 90 days after filing to:

a. Provide the district an opportunity to respond (including providing

a proposal to resolve the complaint).

b. Give the parent an opportunity to submit additional information

about the complaints allegations (orally or in writing).

c. Review all information and make an independent determination as

to whether the district is “violating a requirement.”

d. If ODE determines it necessary, carry out an independent

investigation “on-site” or “off-site.”

e. Issue a written decision that addresses each allegation, contains

findings of fact and reasons for the ODE’s final decision.

3. Can the 90-day deadline be extended?

The Rule does not provide for an extended deadline. However, ODE

guidance provides that the timeline may be extended “where exceptional

circumstances exist.”

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4. Can the Decision be appealed?

a. ODE Guidance “there is no internal administrative appeal or

request for reconsideration.”2

b. External review authority?

5. What if the Complaint involves both IDEA violations and restraint and

seclusion?

ODE Guidance provides that the complaint will be split into two parts and

investigated accordingly.

6. What if incidences occur after the complaint occurs, can the parent add

those new incidences of restraint/seclusion?

No, ODE is requiring a new complaint to be filed.

D. What remedies can ODE provide?

1. ODE guidance suggests that it will “outline corrective action required by

the district to address the noncompliant behavior as well as order the

district to engage in any technical assistance.”

2. ODE guidance further suggests that the district effectively and timely

implements a CAP within required due dates not to exceed one calendar

year.

3. If a district does not comply with the corrective action, progressive

sanctions, as appropriate, will be implemented by OEC. ODE’s guidance

provides:

If the district fails to implement the corrective action plan within the time

provided by the corrective action plan, or if OEC otherwise determines

that the district is unable or unwilling to comply with the corrective action,

OEC will implement progressive sanctions to ensure compliance,

including but not limited to targeting resources to the district or

withholding and reallocating state funds, to ensure provision of necessary

services to the child or to all children

2 The ODE Guidance may be accessed here: http://education.ohio.gov/getattachment/Topics/Student-

Supports/PBIS-Resources/Policy-Positive-Behavior-Interventions-and-Support/State-Complaint-Procedures-for-

Restraint-and-Seclusion.pdf.aspx?lang=en-US

http://education.ohio.gov/getattachment/Topics/Student-Supports/PBIS-Resources/Policy-Positive-Behavior-Interventions-and-Support/State-Complaint-Procedures-for-Restraint-and-Seclusion.pdf.aspx?lang=en-US



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E. The New Rule clarifies that it does not limit the parent’s ability to file a complaint

under any other provision of law.

F. Likely Impact?

IX. Substitute Teachers

Districts are to ensure there is a support plan in place for substitute teachers if they need

assistance with positive behavior intervention and supports or crisis management and de-

escalation, which includes restraint and seclusion.

X. Policy and Procedures

A. The Amended Rule continues to require a Restraint and Seclusion Policy.

B. The policy and procedures must be available on the website.

C. Districts are required to review the Rule and any local policies/procedures related

to PBIS, physical restraint, and seclusion.

XI. What Else You Need to Know.

A. Staff discipline associated with improper restraint and seclusion and/or failure to

document restraint and seclusion appropriately.

1. Has training occurred?

2. Understanding the number of reporting, complaint processes.

B. Note ODE’s guidance on whether restraint and seclusion are allowed to protect

property.

ODE: The emergency use of physical restraint and seclusion is meant to protect

pupils and staff [not property]. If the act of destroying property causes imminent

risk of injury to the student or others and no other safe or effective method of

intervention is available, emergency use of physical restraint and seclusion is

permissible.

C. Autism Scholarship and Jon Peterson Scholarship providers are not required to

report incidences of restraint and seclusion.

D. The Rule does not apply to preschool children. It only applies to students in

grades K-12. For preschool children, O.A.C. 3301-37-10 applies.

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PRE-SCHOOL RULE MODIFICATIONS

I. Background

A. O.A.C. Chapter 3301-51 is Ohio’s Operating Standards for the Education of

Children with Disabilities.

1. O.A.C. 3301-51-1 to 3301-51-10 are the primary operating standards

(“Operating Standards”).

2. O.A.C. 3301-51-11 addresses preschool (“Preschool Rule”).

Two versions of the Preschool Rule:

a. The Preschool Rule before July 1, 2021 (“Old Rule”).

b. The Preschool Rule as of July 1, 2021 (“New Rule”).

B. Understanding the New Rule’s organization.

1. The New Rule does not retain the Old Rule’s format.

2. The New Rule’s format aligns (generally) with Ohio’s Operating

Standards.

Topic

New Preschool Rule

Divisions

Chapter 3301-51

Operating Standards

Definitions Division (A)

“Definitions”

O.A.C. 3301-51-01

“[…] Definitions”

Child-Day Care

Program Rules

Division (B)

O.A.C. Chapter 3301-37.

FAPE Division (C)

“[FAPE]”

O.A.C. 3301-51-02

[“FAPE”]

Child Find Division (D)

Child Find

OA.C. 3301-51-03

Child Find

Confidentiality Division E

Confidentiality

O.A.C. 3301-51-04

“Confidentiality”

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Procedural

Safeguards

Division (F)

“Procedural

Safeguards”

O.A.C. 3301-51-05

“Procedural Safeguards”

Evaluations Division (G)

“Evaluations”

O.A.C. 3301-51-06

“Evaluations”

Division (H) Division (H)

IEPs

O.A.C. 3301-51-07

“…[IEP]”

Parentally

Placed

Nonpublic

School Children

Division (I)

“Parentally Placed

Nonpublic School

Children”

O.A.C. 3301-51-08

“Parentally Placed Nonpublic

School Children”

Division (J) Division (J)

“Delivery of Services

/[LRE].”

O.A.C. 3301-51-09

“Delivery of Services”

Division (K) Division (K)

“Transportation of

Children with

Disabilities”

O.A.C. 3301-51-10

“Transportation of Children with

Disabilities”

3. The New Rule’s format will assist in identifying where the New Rule

aligns and deviates from the Operating Standards.

II. The New Preschool Rule

A. Definitions (O.A.C. 3301-51-11(A)).

1. The New Rule expressly retains the Operating Standards’ definitions rule

(O.A.C. 3301-51-11(A). This means that, generally, those definitions will

still apply.

2. The New Preschool Rule also adopts definitions that are unique—and

limited to—the New Preschool Rule.

a. Read in isolation, these defined terms may be misapplied.

b. Several terms are defined, but are not used elsewhere in the rule.

c. Several terms are defined, but are modified by other language in

the rule.

B. Applicability of Child-Day Care Rules (O.A.C. 3301-51-11(B)).

1. The New Preschool Rule expressly incorporates the administrative rules

related to Child Day-Care programs (O.A.C. 3301-37).

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2. However, there is a proviso: the Child Day-Care Rules apply except “as

otherwise specified” in the Preschool Rule.

C. FAPE (O.A.C. 3301-51-11(C)).

“A school district who provides preschool education” must comply with the

Operating Standard’s FAPE Rule (O.A.C. 3301-51-02).

D. Child Find (O.A.C. 3301-51-11(D)).

1. “A school district who provides preschool education” must comply with

the Operating Standard’s Child Find Rule (O.A.C. 3301-51-03), except as

stated in the rule.

2. Developmental Delay.

The New Rule continues to authorize the use of the term developmental

delay for children ages 3-5 who are “experiencing developmental delays,

and who by reason thereof, need special education and related services.”

a. The New Rule expressly incorporates the conditions for using the

term developmental delay, as specified in O.A.C 3301-51-01 and

3301-51-03. This was implicitly required before, but is now

expressly required.

b. The Rule removes several conditions related to using the term

developmental delay.

3. Interagency Agreements.

The New Rule continues to require interagency agreements “with all

partners” to ensure a FAPE is provided to all preschool children. These

agreements must be reviewed annually. Interagency Agreements include:

a. Head Start programs within the district’s service area.

b. County agency responsible for Part C Early Intervention.

c. Agencies within the district’s service area providing special

education services for preschool children. Examples provided,

include:

(1) County Boards of Developmental Disability.

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(2) Educational Service Centers.

4. Transition from “Part C Early Intervention.”

a. The New Rule specifies “Each school district is responsible for the

following activities related to transition for a child receiving Part

C, Early Intervention services.” (new language is bolded)

b. If invited by a representative of the Part C system, a district

representative must attend a conference to discuss transition from

Early Intervention to preschool. Two significant changes were

made as it relates to the conference.

(1) The Old Rule also required district attendance but was

condition on “the child being suspected of having a

disability.” The quoted language was removed in the New

Rule.

(2) The New Rule also adds the following: a district may not

“delay or refuse participation in the transition conference

because of residency disputes or the absence of the birth

certificate.”

c. Date of referral.

The New Rule expressly states when the referral to the district

must occur. “The date of referral shall be the earliest of the

following”:

(1) 150 days prior to the child’s third birthday (if the Transition

Planning Conference or Part C Notification occur no more

than 150 days prior to the child’s 3rd birthday).

(2) The date the Part C representative first notifies the district

about the child (if this date is within 150 days prior to the

child’s 3rd birthday).

(3) The date of the Transition Planning Conference (if the

Transition Planning Conference occurs within 150 days

prior to the child’s 3rd birthday).

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d. The New Rule changes when an IEP must be implemented for a

preschool child.

If there is suspected disability and the child is If a child is eligible

for special education and related services as a preschool child, the

school district shall work with the family to ensure an IEP is in

place and implemented by the child’s third birthday. If the child’s

[3rd] birthday occurs during the regular school year; services

must begin by the child’s [3rd] birthday. The dates for initiation

and duration of services shall be determined by the IEP team and

other qualified professionals.

e. Extended School Year Services. The New Rule clarifies

obligations related to ESY as part of the transition from Part C

services.

(1) There is no requirement that a child must have A school

district shall not require any child to have previous

school experience to receive [ESY].

(2) The New Rule also specifies that the decision related to

ESY belongs with the IEP team. It removes language that

included “the evaluation team” and “other qualified

professionals.”

f. Penalties for Non-Compliance.

The New Rule retains the existing penalties for non-compliance

with the Transition Timeline.

E. Confidentiality (O.A.C. 3301-51-11(E)).

“A school district who provides preschool special education” must comply with

the Operating Standard’s Confidentiality Rule (O.A.C. 3301-51-04).

F. Procedural Safeguards (O.A.C. 3301-51-11(F)).


the Operating Standard’s Procedural Safeguards Rule (O.A.C. 3301-51-04).

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G. Evaluations (O.A.C. 3301-51-11(G)).


the Operating Standard’s Evaluations Rule (O.A.C. 3301-51-04), except as stated

in the rule.

1. Determining Preschool Child Eligibility.

The New Rule, like the Old Rule, requires eligibility to be determined on

the basis of “multiple sources of information.” The New Rule lists - but

modifies - examples of sources of information. The Changes are reflected

in strikeout and bold:

a. Information Data from Part C for children transitioning from early

intervention services and information from any current

community or preschool program providers.

b. Structured Observation in more than one setting and in multiple

activities shall be conducted after obtaining parental consent

for such observations.

c. Information provided by the parent or caregiver.

d. Criterion referenced and norm referenced evaluations.

e. Results of at least 1 criterion-referenced assessment.

f. Results of at least 1 norm-referenced assessment.

2. The Old Rule identified specific developmental areas that must be

assessed (adaptive behavior, cognition, communication, hearing, vision,

sensory/motor function, social emotional functioning, and behavioral

functioning.) The New Rule eliminates this language.

3. Eligibility is still determined by the parent and a “Group of Qualified

Professionals.” However, the Group of Qualified Professionals is now

expressly defined in the New Rule as:

Two or more representatives of the school district, who collectively meet

the following requirements:

a. Qualified to provide or supervise the provision of SDI to meet the

unique needs of the child.

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b. Qualified to provide or supervise the provision of instruction in the

preschool general education curriculum.

c. Authorized to make decisions about the use of school district

resources for special education and related services.

d. Qualified to interpret the instructional implications of evaluation

results.

4. The New Rule also clarifies existing language that a district must ensure

that it has “sufficient resources” available to conduct evaluations during

the summer months “and meet the timelines described in [the IDEA

evaluation rule] O.A.C. 3301-51-06.”

5. Eligibility and Age.

a. Consistent with the Old Rule, a preschool child must be at least 3

years old and less than 6 years old.

b. The New Rule modifies the Old Rule’s age exception for children

less than 3 years old.

(1) Under the Old Rule, a child younger than 3 is eligible if:

(a) The child will be 3 by December 1st of the current

calendar year; and

(b) The child may participate in special education and

related services as a preschool child before

December 1st of the current calendar year.

(2) Under the New Rule, a child younger than 3 is eligible if:

(a) The child will turn 3 by October 31st of the current

calendar year; and

(b) The child will receive special education and related

services beginning the 1st day of the school year

(unless the IEP team determines an alternative start

date).

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(3) Under the New Rule, a child who is eligible for

kindergarten (but is not of compulsory school age) may

remain in preschool special education through the end of

the school year despite turning 6 under the following

conditions:

(a) If the child will be age eligible for kindergarten the

following year, school-age services must be

considered during the IEP process.

(b) If the child is determined eligible under the category

of “developmental delay” (and turns six during the

school year), then the child must have a preschool

reevaluation before turning 6 to determine

eligibility under one of the other categories.

H. IEPs (O.A.C. 3301-51-11(H).


the Operating Standard’s IEP Rule (O.A.C. 3301-51-07).

I. Parentally Placed Nonpublic School Children (O.A.C. 3301-51-11(I)).

1. “A school district who provides preschool special education” must comply

with the Operating Standard’s Parentally Placed Nonpublic School

Children Rule (O.A.C. 3301-51-07).

2. “Nothing in [this Rule] is intended to change the circumstances under

which a district is or is not required to pay for the cost of FAPE pursuant

[O.A.C. 3301-51-08(B)(8)].” (Emphasis added.)

a. O.A.C. 3301-51-08(B)(8) relates to unilateral parent placement and

when districts have an obligation to pay for the cost of FAPE:

b. That Rule provides that a district of residence is not required to pay

for the cost of FAPE of a child with a disability at a nonpublic

school or facility if: (i) the district of residence makes FAPE

available to the child in the public school and (ii) the parents

elected to place the child in the nonpublic school or facility.

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J. Delivery of Services / Least Restrictive Environment (O.A.C. 3301-51-11(J)).

1. “A school district who provides preschool special education” must comply

with the Operating Standard’s Delivery of Services Rule (O.A.C. 3301-51-

04).

2. List of Preschool Service Options.

The New Rule now requires a school district to maintain a list of the

available preschool education service options in the community (“List”).

a. The List must include providers within the district’s boundaries

and outside the district’s boundaries that “may be more easily

accessible to children with disabilities living within the district’s

boundaries.”

b. The List must:

(1) Be prepared annually,

(2) Be posted publicly,

(3) Be made available during the evaluation process, and

(4) “Inform the discussion and decision on the appropriate

placement of a child with a disability.”

3. Placement Options.

a. The Old Rule provides that “a continuum of service delivery

options that includes options of center based or itinerant teacher

services shall be considered when determining the [LRE].”

b. The New Rule provides that to comply with the LRE requirement,

IEP teams must “consider available options:”

c. Available options are identified in the chart below.

New Rule Terms Types of Class New Rule Definition

Regular Early

Childhood

Education

Setting:

Less than

Public school

preschool

General

Education Class

The Class meets all of the following:

(1) Operated by a public school, ESC, or County Boards of DD, and

(2) Taught by a GenEd teacher or properly qualified dual-licensed

teacher, and

(3) Includes instruction in the GenEd curriculum that is aligned to

Ohio’s Early Learning Standards

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50% of the

students are

students with

disabilities

Public School

Preschool

Integrated Class

The Class meets all of the following:

(1) Operated by a public school, ESC, or County Boards of DD, and

(2)Taught by a GenEd teacher or properly qualified dual-licensed

teacher, and


Ohio’s Early Learning Standards and

(4) 50% of students are children with disabilities

Non-Public

Preschool

Program

(1) A chartered private school or a program licensed by the ODJFS

(e.g., head start/community child-care program; and

(2) A program having a 3, 4, or 5 star rating in "Step Up to Quality"

Head Start

Preschool

Program

As defined in 45 CFR 1305.2

A public school

preschool

integrated class

N/A (1) Operated by a public school, ESC, or County Boards of DD, and

(2)Taught by a GenEd teacher or properly qualified dual-licensed

teacher, and


Ohio’s Early Learning Standards and

(4) 50% of students are children with disabilities

A public school

preschool

special

education class

N/A (1) the lead teacher is qualified to teach preschool SpEd (O.A.C.

3301-37-04), and

(2) the lead teacher is responsible for specially designed instruction

for one or more children with IEPs enrolled in the class, and

(3) at least fifty-one per cent of the students enrolled in the class are

children with disabilities.

Special School N/A Not defined in the Rule.

Home Service

Provider

Location

N/A Not defined in the Rule.

d. Section 11 of the IEP and the New Rule.

(1) The term “Regular Early Childhood Setting” is derived

from and aligns with federal reporting requirements for

Indicator 6. However, the term is not synonymous with the

term “general education setting” in Section 11 of the IEP.

(2) ODE guidance3 states that “the integrated class is not

considered a general education setting because it does not

meet the requirement of less than 50 percent of students

being children with disabilities.”

3 ODE’s Guidance is available here: http://education.ohio.gov/getattachment/Topics/Early-Learning/Preschool-

Special-Education/Preschool-Special-Education-Rule-FAQ.pdf.aspx?lang=en-US

http://education.ohio.gov/getattachment/Topics/Early-Learning/Preschool-Special-Education/Preschool-Special-Education-Rule-FAQ.pdf.aspx?lang=en-US

http://education.ohio.gov/getattachment/Topics/Early-Learning/Preschool-Special-Education/Preschool-Special-Education-Rule-FAQ.pdf.aspx?lang=en-US

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(3) Therefore, if a student is being educated in a Integrated

Class, the student “does not attend a general education

setting.”

4. The New Rule adds the following language regarding placement:

a. Placement decisions must be made annually by the IEP team.

b. The placement decision must consider the school that the child

would attend if nondisabled.

c. The IEP team can require a different placement if “there would be

a potential harmful effect on the child or on the quality of services

he or she needs. This determination could result in the child

staying in his or her current class/program […].”

5. The New Rule adds specific considerations for a child who is already

participating in a Regular Early Childhood Setting, but then is

subsequently identified as a child with a disability.

a. The child must remain in the enrolled program, unless the IEP

team determines that the existing program is unable to serve the

child under O.A.C. 3301-51-11(J)(3) (establishing that there would

be a potential harmful effect on the child or on the quality of

needed services).

b. The child may not be removed from education in age-appropriate

“regular classrooms” solely because of needed modification in the

general education curriculum.

c. An IEP must contain an “individualized justification” if a child is

removed from either:

(1) A “general education setting (such as, regular routine or

activities)”; or

(2) From nondisabled peers to provide SDI and/or related

services.

6. Preschool Services.

a. The New Rule specifies that when determining services, the

“school district” must consider:

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(1) The Requirements specified in O.A.C. 3301-51-09 (the rule

related to Delivery of Services / LRE); and

(2) The following factors:

(a) The child’s ability to participate and progress in the

general early childhood curriculum; and

(b) The child’s socialization needs; and

(c) The child’s educational and developmental process.

b. The New Rule also specifies how services shall be provided for all

preschool children eligible for special education services.

(1) Home or Service Provider Location: must be provided a

minimum of one hour of instruction per week in the general

education curriculum that includes SDI (unless otherwise

specified by the IEP team).

(2) Any other Setting (than a home or Service Provider

Location). The student must be provided 360 hours of

programming per year (unless otherwise specified by the

IEP team). This programming must include the general

education curriculum, and a minimum of 1 hour per week

of SDI, RS, or a combination of SDI/RS.

(3) Visual and/or Hearing Impairment. Children with a visual

and/or hearing impairment who receive services in a non-

categorical must have a minimum of support for school

personnel services provided by an intervention specialist

licensed in the area.

7. Measuring Child Progress.

The New Rule retains the same language as it relates to measuring child’s

progress.

8. Preschool Personnel Qualifications.

a. The New Rule was simplified to restate that personnel must be

appropriately credentialed under O.A.C. 3301-24.

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b. Intervention specialists who are assigned to categorical preschool

classrooms for children with visual or hearing impairments must

have the appropriate license required for the categorical area.

9. Preschool Supervisory Services.

a. The Old Rule identified a “preschool special education

supervisor,” but did not specify a requirement to have one. The

New Rule expressly states that each school district: is required to

“designate a qualified individual to ensure preschool special

education services are provided in accordance with all applicable

rules, regulations, and laws.”

b. The New Rule removes specific requirements to be the supervisor.

c. As with the Old Rule, the New rule specifies what the individual is

“responsible”

Responsibilities added in the new rule are in bold:

(1) Ensuring Development and implementation of

interagency agreements.

(2) Providing assistance to personnel in providing

developmental and exceptionality applied practices for

eligible preschool children.

(3) Ensuring Compliance with licensing requirements in

R.C. 3301.58.

(4) Facilitating comprehensive system for young children with

disabilities.

(5) Participating in the development and evaluation of

professional development plans and induction programs

that apply to early childhood personnel (pursuant to O.A.C.

3301-24-06 and R.C. 3319.223)

(6) Participating in the “Step UP to Quality” program and

maintaining 3,4 or 5 stars.

(7) Assisting with implanting and evaluating state standards

that apply to early childhood programs

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(8) Collaborating with early childhood providers “to ensure

continuity of care for dual enrolled children and availability

of a full [LRE] continuum.

(9) Collaborate with ODE, as appropriate.

10. Service Provider Workload.

The New Rule adds the following regarding workload: “In addition to

caseload requirements, school districts must consider the overall workload

of each staff member (O.A.C. 3301-51-09) and the licensing ratio

requirements for preschool programs (O.A.C. 3301-37-04)

a. A full-time early childhood intervention specialist must be

provided when there are 8 full-day or 16 half-day children served

on IEPs enrolled in a public school preschool special education

class.

b. An intervention specialist classroom teacher.

(1) Shall not carry an additional itinerant caseload if:

(a) responsible for 8 or more half-day class sessions

(e.g., 4 morning and 4 afternoon sessions per week),

(b) 4 full-day class sessions.

(2) May serve up to 8 additional children on an itinerant

caseload* if:

(a) Responsible for up to 5 half-day class sessions (e.g.,

5 morning sessions per week).

(b) Responsible for up to 3 full-day class sessions.

* ODE may grant a waiver to the itinerant caseload to serve

additional students with disabilities.

(3) May serve up to 4 additional children on an itinerant

caseload* if:

Responsible for six or seven half-day class sessions (e.g., 3

morning and 4 afternoon sessions per week).

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c. An itinerant intervention specialist at 1 FTE shall serve no more

than 20 eligible preschool children.



d. A preschool attendant at 1 FTE shall have a caseload of no more

than 3 eligible preschool children.

e. Staff serving preschool and school age children with disabilities

will have FTE apportioned on the basis of the number of children

served in each age category and the percentages totaling one

hundred percent.

K. Transportation of Children With Disabilities (O.A.C. 3301-51-11(K)).

1. The Transportation Rule (O.A.C.3301-51-10) applies to preschool special

education.

2. Transportation shall be listed as a related service on a preschooler's IEP if

the IEP team determines that transportation is required for the child to

access FAPE and benefit from special education.

RECENT CASES and WHAT YOU NEED TO KNOW

I. C.K. by S.R. v. BESCSD, 2021 WL 463187 (N.D. Ohio 2021).

A. Background.

A student with autism who suffered from significant reading deficits was enrolled

at the school district where he received IEP services that focused on reading skills

to catch him up to his grade level. The school district provided him with 100

weekly minutes of services to make progress on his reading goal and hired two

teachers to provide additional intervention for the student each week. The parent

had him evaluated by a private tutor who then provided intensive tutoring which

resulted in the student missing the first half of each school day at the school

district.

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The parent filed a due process complaint, alleging the school district failed to

provide the student with FAPE, arguing that the student’s reading scores went up

with more private tutoring, and went down with less. The parent argued that the

past costs must be reimbursed to remedy the school district's failure to provide a

FAPE.

B. Holding.

The court ultimately agreed with the IHO’s conclusion and found that the student

could read at or even above grade level in certain circumstances. Additionally,

the intensive private tutoring ignored and actively harmed the student’s other

stated IEP goals. The IEP provided special education goals for the student in five

different areas and the private tutoring was not necessary to make progress

towards the student’s IEP reading goal. Additionally, the heavy extent of private

tutoring the student had violated the least restrictive environment requirement due

to the private tutoring being a restrictive environment, with one-on-one tutoring

separate from the classroom or any other students.

C. What you need to know and other takeaways.

1. To be entitled to reimbursement parents must clear three hurdles:

a. The school district of residence has not made FAPE available to

the child in a timely manner prior to the child’s private placement.

b. The private placement is appropriate.

c. A parent’s right to reimbursement can be reduced or denied by a

hearing officer in a due process complaint. O.A.C. 3301-51-

02(L)(4).

2. Under IDEA, “[p]arents who unilaterally change their child’s

placement . . . without the consent of . . . local school officials, do so at

their own financial risk.” L.H. v. Hamilton Cty. Dep't of Edn., 900 F.3d

779, 791 (6th Cir. 2018).

3. Is a parent’s unilateral private placement inappropriate because it is not

the student’s least restrictive environment?

A private school does not have to be a student's least restrictive

environment to qualify as an appropriate placement for reimbursement

purposes. Cleveland Heights-University Heights City Sch. Dist. v. Boss,

28 IDELR 32 (6th Cir. 1998).

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4. Warning signs that a unilateral placement may be coming:

a. Parent requests an IEE and the IEE includes services that are

unusual or appear to be written for a private school.

b. At an IEP meeting the parents inform the school district that they

are rejecting the placement proposed by the district to provide

FAPE to their child, including stating their concerns and their

intent to enroll their child in a nonpublic school at public expense.

c. A 10 Day written notice is provided that the parent is rejecting the

placement proposed by the school district to provide FAPE to their

child, including stating their concerns and their intent to enroll

their child in a nonpublic school at public expense.

d. A once cooperative parent makes a number of new demands and/or

requests the student’s file.

e. The parent brings an advocate or attorney to IEP meetings.

5. If a student is enrolled in a private school, when is there a duty to develop

an IEP?

If the parents make clear their intention to keep their child with a disability

enrolled in private school then the school district of residence need not

develop an individualized education program (IEP) for the child. If the

child with a disability who is in need of special education and related

services enrolls or re-enrolls in the school district of residence, the school

district of residence must make FAPE available. O.A.C. 3301-51-

08(B)(8)(c).

II. Reboira v. MCSD, 77 IDELR 165 (Ohio C.P. 2020).

A. Background.

A parent claimed that a settlement agreement was breached when the parent

enrolled her child in the District by the date indicated in the agreement but also

enrolled her student in the special education program of another school outside

the District. The parties had entered into a settlement agreement over a dispute

regarding educational services and the program for her autistic child. The

agreement included a provision that the parent would enroll the student to receive

his education in the District for the 2019-20 school year.

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B. Holding.

The court found that the settlement agreement’s enrollment language did not

mean or imply attendance. Because the student was enrolled by the date set forth

in the agreement and remained enrolled until the first part of March, these actions

did not violate any provision of the parties’ agreement. The term enrollment does

not mandate attendance, rather it means to register. The parent fulfilled this

condition when she re-enrolled the student in the District by the agreed-upon

deadline.


1. When students are engaged in disputes with families, the student’s

enrollment status may be unclear.

2. Settlement agreements can be enforced as contractual matters in court and

may evade IDEA’s due process complaint procedure.

3. Districts need to ensure that they understand the terms of complex

settlement agreements and meet deadlines specified in settlement

agreements.

4. Before agreeing to terms in a settlement agreement, think whether the

District can do what is being asked of it.

a. Are daily communications with the parent realistic?

b. How easily can you ensure that staff are complying with terms?

c. What is the parent being asked to do?

III. ACLS CP 0039-2021 (June 4, 2021).

A. Background.

In this State complaint, a student was enrolled in the District, was in sixth grade

for the 2020-2021 school year, and was identified as a student with a disability in

the category of Multiple Disabilities. The Student had eight goals on his IEP.

The Student was provided progress reports, but the reports did not provide the

data specified in the goals/objectives and were not completed consistently.

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1. The Fine Motor Goal was expressed in the number of accurate words

typed per minute, but “a comparison could not be made on accuracy as it

was reported…as a percentage correct and in another portion…as a

number of errors.”

2. Progress on the Speech and Language goals: “Progress could not be

determined for the Student's category objectives as little information was

provided on the progress reports.”

3. The Student read at the second-grade level between March 2020 and

March 2021. “Inconsistency of data reporting and use of reading samples

which ranged from the beginning of second grade (level K) to third grade

(no level provided), make it difficult to make accurate comparisons of

what the Student is able to do.”

B. Holding.

The Student's progress reports documented data that was collected inconsistently

and did not include the required number of trials (in part because the service

providers did not see the Student consistently and did not include information

which demonstrated whether or not the Student was making progress).

Additionally, some of the data collected were for skills that were not part of the

Student's IEP goals.


1. Although this was not a due process case, the issues raised by the ODE

could result in a denial of FAPE

2. Every “box” in a progress report should be completed. If goal/objective is

not assessed in the review period, the progress report should explain why.

3. Review progress reports before sending to ensure information is complete

and is understandable to the parent.

4. If data is not being reported, is disciplinary action appropriate?

5. Do the goals, objectives, and reporting periods make logical sense?

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IV. Dougall v. CPFCSD Bd. of Educ., 2020 WL 435385 (N.D. Ohio 2020).

A. Background.

Child was enrolled in the school district from kindergarten until ninth grade.

Through elementary school, the student had no issues. In 7th and 8th grade, issues

arose with other students and instances of bullying occurred. The Child then

wrote a note threatening to shoot other students. The student was suspended and

then expelled for 80 days. The Child was enrolled in a private school and her

parents filed a due process complaint. The District then invited the parents to an

ETR planning meeting. After no response and several delays, the meeting was

held. Despite giving initial consent for evaluation, subsequent e-mails showed

that the parents prevented the school district from fully assessing the student and

evaluating her need for IDEA services. The parents prohibited the school district

from observing the student in her parochial school classroom or gathering

information about the student from the staff.

B. Holding.

The court found that the school district did not violate the IDEA when it declined

to evaluate the student with private diagnoses of autism and an anxiety disorder.

The court specifically noted, “[The parents'] actions and attempts to exert

complete control over the evaluation process prevented [the district] from

properly conducting the evaluation, and, thereby, amounted to a revocation of

consent to the evaluation itself." Furthermore, the District had no reason to

evaluate the student for IDEA services before October 2015, when she admitted

to writing a plan for a school shooting, due to the student's good grades,

appropriate interactions with peers, and lack of behavioral issues.


1. The revocation of consent was one of fourteen alleged procedural

violations. None were upheld. For a court to grant relief for a procedural

violation, a plaintiff must show that the violation resulted in substantive

harm to the student or her parents, such as seriously infringing on the

parents’ opportunity to participate in the IEP process, depriving an eligible

student of an IEP, or causing the loss of educational opportunity.

2. The District was able to document many communications with the

student’s parents and attorney. The was the case’s underlying narrative.

38


Cleveland, Ohio

All Rights Reserved

V. E.C. V. U.S.D. 76 IDELR 212 (D. Kan. 2020)

A. Background.

In a Kansas case, an elementary school student’s IEP included a BIP. The District

implemented the BIP generally, but deviated on three occasions. One time, an

administrator entered the seclusion room before the student was calm. On another

occasion, the teacher failed to restrain the student as required when the student

began banging his head in seclusion room. On the third occasion, a principal

verbally engaged with the student while the student was pulling limbs off of a

tree. The parent alleged a denial of FAPE because of the failure to implement the

IEP.

B. The court agreed that there was no denial of FAPE because implementation

failures were not material and did not result in lasting harm. For a denial of

FAPE to exist, there must be a significant deviation from the student’s program.

The student made progress on behavior throughout the year. Also, the district

was able to explain each deviation. The teacher had “valid concerns” that the

student would become more violent if restrained, and otherwise followed the BIP.

The Principal calmed the student down after the verbal altercation.


1. Minor implementation failures are unlikely to result in a denial of FAPE.

2. However, under Ohio’s new Restraint and Seclusion Rule, it is possible

that the District would not have been successful. Deviation would be

documented and reasons for not amending the BIP may require

justification.

CONCLUSION

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