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5005 Rockside Road, Suite 260
Cleveland, Ohio 44131-6808
t: 216-520-0088 | f: 216-520-0044
www.pepple-waggoner.com
©Copyright 2021, Pepple & Waggoner, Ltd.
Cleveland, Ohio
All Rights Reserved
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.
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
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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
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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)).
“A school district who provides preschool special education” must comply with
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)).
“A school district who provides preschool special education” must comply with
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).
“A school district who provides preschool special education” must comply with
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
(3) Includes instruction in the GenEd curriculum that is aligned to
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
(3) Includes instruction in the GenEd curriculum that is aligned to
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
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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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* ODE may grant a waiver to the itinerant caseload to serve
additional students with disabilities.
c. An itinerant intervention specialist at 1 FTE shall serve no more
than 20 eligible preschool children.
* ODE may grant a waiver to the itinerant caseload to serve
additional students with disabilities.
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.
C. What you need to know and other takeaways.
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.
C. What you need to know and other takeaways.
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.
C. What you need to know and other takeaways.
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.
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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.
C. What you need to know and other takeaways.
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