Ohio Admin. Code 3301-51-05 - Procedural safeguards
(A) Each
school
district
educational agency
shall adopt
and implement written policies and procedures approved by the Ohio department
of education, office for exceptional children, to ensure that children with
disabilities and their parents are provided procedural safeguards.
(B) Each school district of residence shall
adopt and implement written policies and procedures approved by the Ohio
department of education, office for exceptional children, to ensure that
children with disabilities and their parents and public agencies are provided
an opportunity to resolve disputes regarding identification, evaluation , or
educational placement of a child with a disability or the provision of a free
appropriate public education (FAPE).
(C) Parental consent
(1) Parental consent for initial evaluation
(a) The school district proposing to conduct
an initial evaluation to determine if a child qualifies as a child with a
disability under the definition of "child with a disability " in rule
3301-51-01 of the Administrative
Code must, after providing notice consistent with the requirements of this
rule, obtain informed consent , consistent with the definition of "consent " in
rule 3301-51-01 of the Administrative
Code, from the parent of the child before conducting the evaluation .
(b) Parental consent for initial evaluation
must not be construed as consent for initial provision of special education and
related services .
(c) The school
district must make reasonable efforts to obtain the informed consent from the
parent for an initial evaluation to determine whether the child is a child with
a disability .
(d) For initial
evaluations only, if the child is a ward of the state and is not residing with
the child's parent , the school district is not required to obtain informed
consent from the parent for an initial evaluation to determine whether the
child is a child with a disability if:
(i)
Despite reasonable efforts to do so, the school district cannot discover the
whereabouts of the parent of the child;
(ii) The rights of the parents of the child
have been terminated in accordance with state law; or
(iii) The rights of the parent to make
educational decisions have been subrogated by a judge in accordance with state
law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the child.
(e) If the parent of a child enrolled in a
school district or seeking to be enrolled in a school district does not provide
consent for initial evaluation under this rule, or the parent fails to respond
to a request to provide consent , the school district of residence may, but is
not required to, pursue the initial evaluation of the child by utilizing the
procedural safeguards in Subpart E of Part B of the Individuals with
Disabilities Education Act , as amended by the Individuals with Disabilities
Education Improvement Act of 2004, December 2004 (IDEA ) (including the
mediation procedures or the due process procedures under this rule).
The
(2) Parental consent for services
(a) A school district of residence that is
responsible for making FAPE
"Free Appropriate Public Education " available to
a child with a disability must obtain informed consent from the parent of the
child before the initial provision of special education and related services to
the child.
(b) The school district
of residence must make reasonable efforts to obtain informed consent from the
parent for the initial provision of special education and related services to
the child.
(c) If the parent of the
child refuses to consent to the initial provision of special education and
related services , or the parent fails to respond to a request to provide
consent for the initial provision of special education and related services ,
the school district of residence :
(i) Shall
not use the procedures in Subpart E of Part B of the IDEA , including the
mediation procedures or the due process procedures described in this rule, in
order to obtain agreement or a ruling that services may be provided to the
child;
(ii) Will not be considered
to be in violation of the requirement to make FAPE
"Free Appropriate
Public Education " available to the child for the failure to provide the
child with the special education and related services for which the school
district of residence requests consent ; and
(iii) Is not required to convene an
individualized education program (IEP) team meeting or develop an IEP under
rule 3301-51-07 of the Administrative
Code for the child for the special education and related services for which the
school district of residence requests such consent .
(3) Revocation of parental
consent . If, at any time subsequent to the initial provision of special
education and related services , the parent of a child revokes consent in
writing for the continued provision of special education and related services ,
the school district :
(a) Shall not continue
to provide special education and related services to the child, but shall
provide prior written notice in accordance with paragraph (H) of this rule
before ceasing the provision of special education and related
services ;
(b) Shall not use the
procedures in Subpart E of Part B of the IDEA , including the mediation
procedures or the due process procedures described in this rule, in order to
obtain agreement or a ruling that the services shall be provided to the
child;
(c) Shall not be considered
to be in violation of the requirement to make FAPE
"Free Appropriate
Public Education " available to the child for the failure to provide the
child with further special education and related services ; and
(d) Shall not be required to convene an
individualized education program (IEP) team meeting or develop an IEP pursuant
to rule 3301-51-07 of the Administrative
Code for the child for further provision of special education and related
services .
(4) Parental
consent for reevaluations
(a) Subject to
paragraph (C)(4)(b) of this rule, each school district :
(i) Must obtain informed parental consent , in
accordance with paragraph (C)(1) of this rule, prior to conducting any
reevaluation of a child with a disability .
(ii) If the parent refuses to consent to the
reevaluation, the school district of residence may, but is not required to,
pursue the reevaluation by using the consent override procedures described in
paragraph (C)(1)(e) of this rule.
(iii) The school district of residence does
not violate its obligation under rule
3301-51-03 of the Administrative
Code for child find and under rule
3301-51-06 of the Administrative
Code for reevaluations if it declines to pursue the reevaluation.
(b) The informed parental consent
described in paragraph (C)(4)(a) of this rule need not be obtained if the
school district can demonstrate that:
(i) It
made reasonable efforts to obtain such consent ; and
(ii) The child's parent has failed to
respond.
(5)
Parental consent for a change of placement
(a) A "change of placement" means a change
from one option on the continuum of alternative placements to
another.
(b) Informed parental
consent must be obtained before making a change of placement of a child with a
disability .
(c) Informed parental
consent need not be obtained before:
(i) A
change of placement if the school district of residence can demonstrate that it
has made reasonable efforts, as described in rule
3301-51-07 of the Administrative
Code, to obtain consent , and the child's parent has failed to
respond.
(ii) A change of placement
of a child with a disability that is the result of a disciplinary action taken
in accordance with paragraph (K)(20)
(K)(19) of this rule.
(iii) Reviewing existing data as part of an
evaluation or a reevaluation; or
(iv) Administering a test or other evaluation
that is administered to all children unless, before administration of that test
or evaluation , consent is required of parents of all children.
(6) Parental consent
for use of public benefits for insurance
(a)
Informed parental consent must be obtained prior to the initial use of public
benefits or insurance to pay for special education and related services with
notice of rights under this provision provided annually.
(b) Parental refusal or withdrawal of consent
for the use of public benefits or insurance to pay for special education and
related services may not be used by a district to deny the child or parent
access to required services at no cost to the parent .
(c)
Informed parental
consent need not be obtained before:
(i)
Reviewing existing data as part of an evaluation or a
reevaluation; or
(ii)
Administering a test or other evaluation that is
administered to all children unless, before administration of that test or
evaluation , consent is required of parents of all children.
(7) Other consent
requirements
(a)
A
school district
An educational agency
may not use a parent 's refusal to consent to one service or activity under
paragraph (C)(1) or (C)(5)(b) of this rule
to deny the parent or child any other service, benefit, or activity of the
school district
educational agency
, except as required by this
rule.
(b) To meet the reasonable
efforts requirement in paragraphs (C)(1)(c), (C)(1)(d)(i), (C)(2)(b),
and (C)(4)(b)(i), and
(C)(5)(c)(i) of this rule, the
school
district
educational agency
must
document its attempts to obtain parental consent using the procedures in rule
3301-51-07 of the Administrative
Code.
(D)
Transfer of parental rights at age of majority
(1) Beginning no later than one year before a
child with a disability (except for a child with a disability who has been
determined to be incompetent under Ohio law) reaches the age of majority under
Ohio law (eighteen years of age), the IEP
individualized education program
must include a
statement that the child and parent have been informed of the child's rights
under Part B of the Act that will transfer to the child upon reaching the age
of majority.
(2) When a child with
a disability reaches the age of majority under Ohio law (eighteen years of age)
that applies to all children (except for a child with a disability who has been
determined to be incompetent under Ohio law):
(a) All rights accorded to parents under Part
B of the IDEA and Chapter 3323. of the Revised Code transfer to the
child;
(b) All rights accorded to
parents under Part B of the IDEA and Chapter 3323. of the Revised Code transfer
to children who are incarcerated in an adult or juvenile, state or local
correctional institution; and
(c)
The school district of residence must provide the notice required by this rule
to notify both the child and the parents of the transfer of rights.
(E) Surrogate parents
(1) General
Each
(b) The
school district
educational agency
, after reasonable efforts, cannot
locate a parent ;
(c) The child is a
ward of the state under the laws of Ohio; or
(2)
Duties of the
school district
educational agency
The duties of a
(a) For determining whether a child needs a
surrogate parent ; and
(b) For
assigning a surrogate parent to the child.
(3) Wards of the state
In the case of a child who is a
(4) Criteria for selection of surrogate
parents
(a) A surrogate parent shall be
assigned as soon as possible but no later than thirty days of the date that it
is determined that the child is in need of the surrogate.
(b) The school district of residence
maintains the ultimate responsibility for the assignment of a surrogate parent .
If requested by the school district of residence and mutually agreed upon, the
school district of attendance, county board of developmental disabilities
(county board of DD), or other educational agency may appoint the surrogate
parent .
(c) The school district of
residence must ensure that a person selected as a surrogate parent :
(i) Is not an employee of the Ohio department
of education, the
school district
educational agency
, or any other agency that is
involved in the education or care of the child;
(ii) Has no personal or professional interest
that conflicts with the interest of the child the surrogate parent
represents;
(iii) Has knowledge and
skills that ensure adequate representation of the child; and
(iv) Has successfully completed the training
prescribed by the Ohio department of education prior to acting on behalf of the
child.
(5)
Non-employee requirement; compensation
A person who is otherwise qualified to be a
(6) Civil damages
Pursuant to section
3323.051 of the Revised Code,
neither the
(7) Appointment of surrogate by a judge
If a
(8) Child who has reached age of majority
A child who has reached the age of majority may request a
(9)
Unaccompanied homeless youth
In the case of a child who is an unaccompanied homeless youth,
appropriate staff of emergency shelters, transitional shelters, independent
living programs, and street outreach programs may be appointed as temporary
surrogate parents without regard to paragraph (E)(4)(c)(i) of this rule, until
a
(10) Surrogate parent responsibilities
The
(a) The identification,
evaluation , and educational placement of the child; and
(b) The provision of
FAPE
"Free
Appropriate Public Education " to the child.
(11)
Surrogate parent
duties
(a)
The
surrogate parent will:
(i)
Review a child's educational records as needed to make
informed special education decisions for the child;
(ii)
When
appropriate, provide consent to evaluations and re-evaluations;
(iii)
Agree or
disagree with the following:
(a)
Individualized education programs;
(b)
Results of an
evaluation team report; and
(c)
Changes in
educational placement.
(iv)
Disagree with or
dispute the recommendations of the educational agency by:
(a)
Requesting
mediation;
(b)
Filing a formal written complaint; or
(c)
By requesting a
due process hearing.
(b)
A surrogate
parent under this rule has only the rights stated in this rule.
(c)
Procedures for
assignment of a surrogate parent .
(i)
Whenever parents have retained legal rights to make
educational decisions and can be contacted by the educational agency to act as
the parent on behalf of their child in the special education process, the
educational agency must treat the parent as the educational decision maker. The
educational agency cannot appoint a surrogate parent for a child when there is
another person in the child's life who qualifies as a parent under IDEA and
whose rights to make educational decisions for the child have not been
terminated.
(ii)
For a child who is eligible or thought to be eligible
for special education services and requires the appointment of a surrogate
parent , the school district of residence must ensure that a surrogate parent is
appointed to represent the child in all matters related to identification,
evaluation , placement, and the provision of a free appropriate public education
according to the procedures in
34 C.F.R.
300.519.
(F) Opportunity to
examine records; parent participation in meetings
(1) The parents of a child with a disability
must be afforded, in accordance with the procedures of rule
3301-51-04 of the Administrative
Code, an opportunity to inspect and review all education records with respect
to:
(a) The identification, evaluation , and
educational placement of the child; and
(b) The provision of
FAPE
"Free
Appropriate Public Education " to the child.
(2) Parent participation in meetings
(a) The parents of a child with a disability
must be afforded an opportunity to participate in meetings with respect to:
(i) The identification, evaluation , and
educational placement of the child; and
(ii) The provision of
FAPE
"Free
Appropriate Public Education " to the child.
(b) Each
school
district
educational agency
must provide
notice consistent with the parent participation requirements of rule
3301-51-07 of the Administrative
Code to ensure that parents of children with disabilities have the opportunity
to participate in meetings described in paragraph (F)(2)(a) of this
rule.
(c) A meeting does not
include informal or unscheduled conversations involving
school district
educational agency
personnel and conversations on
issues such as teaching methodology, lesson plans, or coordination of service
provision. A meeting also does not include preparatory activities that
school district
educational agency
personnel engage in to develop a
proposal or response to a parent proposal that will be discussed at a later
meeting.
(3) Parent
involvement in placement decisions
(a) Each
school district
educational agency
must ensure that a parent of each
child with a disability is a member of any group that makes decisions on the
educational placement of the parent 's child.
(b) In implementing the requirements of
paragraph (F)(3)(a) of this rule, the
school
district
educational agency
must use
procedures consistent with the procedures described in the parent participation
requirements of rule
3301-51-07 of the Administrative
Code.
(c) If neither parent can
participate in a meeting in which a decision is to be made relating to the
educational placement of their child, the
school
district
educational agency
must use
other methods to ensure their participation, including individual or conference
telephone calls, or video conferencing.
(d) A placement decision may be made by a
group without the involvement of a parent , if the
school district
educational
agency
is unable to obtain the parent 's participation in the decision. In
this case, the
school district
educational agency
must have a record of its
attempt to ensure their involvement.
(G) Independent educational evaluation
(1) General
(a) The parents of a child with a disability
have the right under this rule to obtain an independent educational evaluation
of the child, subject to paragraphs (G)(2) to (G)(5) of this rule.
(b) Each school district of residence must
provide to parents, upon request for an independent educational evaluation ,
information about where an independent educational evaluation may be obtained,
and the district's criteria applicable for independent educational evaluations
as set forth in paragraph (G)(5) of this rule.
(c) The following terms are defined as they
are used in this rule:
(i) "Independent
educational evaluation " means an evaluation conducted by a qualified examiner
who is not employed by the
school district
educational agency
responsible for the education
of the child in question; and
(ii)
"Public expense" means that the school district of residence either pays for
the full cost of the evaluation or ensures that the evaluation is otherwise
provided at no cost to the parent , consistent with rule
3301-51-02 of the Administrative
Code.
(2)
Parent right to evaluation at public expense
(a) A parent has the right to an independent
educational evaluation at public expense if the parent disagrees with an
evaluation obtained by the school district of residence , subject to the
conditions in paragraphs (G)(2)(b) to (G)(2)(d) of this rule.
(b) If a parent requests an independent
educational evaluation at public expense, the school district of residence
must, without unnecessary delay, either:
(i)
File a due process complaint to request a hearing to show that its evaluation
is appropriate; or
(ii) Ensure that
an independent educational evaluation is provided at public expense, unless the
school district of residence demonstrates in a hearing pursuant to paragraphs
(K)(2) and (K)(7) to (K)(13)
(K)(12) ) of this rule that the evaluation obtained by
the parent did not meet district criteria.
(c) If the
school
district
educational agency
files a due
process complaint notice to request a hearing and the final decision is that
the
school district 's
educational agency 's evaluation is appropriate,
the parent still has the right to an independent educational evaluation , but
not at public expense.
(d) If a
parent requests an independent educational evaluation , the
school district of residence
educational agency
may ask for the parent 's
reason why the parent objects to the public evaluation . However, the
school district
educational agency
may not require the parent to
provide an explanation.
and
The educational
agency
may not unreasonably delay either providing the independent
educational evaluation at public expense or filing a due process complaint to
request a due process hearing to defend the public evaluation .
(e) A parent is entitled to only one
independent educational evaluation at public expense each time the
school district
educational agency
conducts an evaluation with which
the parent disagrees.
(3) Parent -initiated evaluations
If the
(a) Must be considered by the school district
of residence , if it meets district criteria, in any decision made with respect
to the provision of FAPE
"Free Appropriate Public Education " to the child;
and
(b) May be presented by any
party as evidence at a hearing on a due process complaint under Subpart E of
Part B of the IDEA regarding that child.
(4) Requests for evaluations by hearing
officers
If a hearing officer requests an
(5)
School
district
Educational agency
criteria
(a) If an independent educational evaluation
is at public expense, the criteria under which the evaluation is obtained,
including the location of the evaluation and the qualifications of the
examiner, must be the same as the criteria that the school district of
residence uses when it initiates an evaluation , to the extent those criteria
are consistent with the parent 's right to an independent educational
evaluation .
(b) Except for the
criteria described in paragraph (G)(5)(a) of this rule, a school district of
residence may not impose conditions or timelines related to obtaining an
independent educational evaluation at public expense.
(H) Prior notice by the
school district
educational agency
; content of notice
(1) Notice
Written notice that meets the requirements of paragraph (H)(2)
of this rule must be given to the parents of a
(a) Proposes to initiate or change the
identification, evaluation , or educational placement of the child or the
provision of FAPE
"Free Appropriate Public Education " to the child;
or
(b) Refuses to initiate or
change the identification, evaluation , or educational placement of the child or
the provision of FAPE
"Free Appropriate Public Education " to the
child.
(2) Content of
notice
The notice required under paragraph (H)(1) of this rule must
(a) A description of the
action proposed or refused by the
school
district
educational agency
;
(b) An explanation of why the
school district
educational agency
proposes or refuses to take the
action;
(c) A description of each
evaluation procedure, assessment, record, or report the
school district
educational agency
used as a basis for the proposed or
refused action;
(d) A statement
that the parents of a child with a disability have protection under the
procedural safeguards of this rule and, if this notice is not an initial
referral for evaluation , the means by which a copy of a description of the
procedural safeguards can be obtained;
(e) Sources for parents to contact to obtain
assistance in understanding the provisions of this rule;
(f) A description of other options that the
IEP team considered and the reasons why those options were rejected;
and
(g) A description of other
factors that are relevant to the
school
district 's
educational agency 's proposal
or refusal.
(3) Notice
in understandable language
(a) The notice
required under paragraph (H)(1) of this rule must be:
(i) Written in language understandable to the
general public; and
(ii) Provided
in the native language of the parent or other mode of communication used by the
parent , unless it is clearly not feasible to do so.
(b) If the native language or other mode of
communication of the parent is not a written language, the
school district
educational agency
must take steps to ensure:
(i) That the notice is translated orally or
by other means to the parent in the parent 's native language or other mode of
communication;
(ii) That the parent
understands the content of the notice; and
(iii) That there is written evidence that the
requirements in paragraphs (H)(3)(b)(i) and (H)(3)(b)(ii) of this rule have
been met.
(4)
Additional notice requirements
(a) Prior
written notice shall be provided to the parents of a child with a suspected or
confirmed disability within thirty days of the date of referral .
(b) Prior written notice shall be provided to
the parents of a child with a suspected or confirmed disability prior to a
change of placement that is a result of a disciplinary action.
(I) Procedural
safeguards notice
(1) General
A copy of the procedural safeguards available to the parents of
a
(a) Upon initial referral or parent request
for evaluation ;
(b) Upon receipt of
the first due process complaint under paragraph (K)(7) of this rule in a school
year;
(c) In accordance with the
discipline procedures in paragraph (K)(20)
(K)(19) of this rule; and
(d) Upon request by a parent .
(2) Internet web site
A
(3) Contents of notice
The procedural safeguards notice must
(a)
Independent educational evaluations;
(b) Prior written notice;
(c) Parental consent ;
(d) Access to education records ;
(e) Opportunity to present and resolve
complaints through the due process complaint and state complaint procedures,
including:
(i) The time period in which to
file a complaint;
(ii) The
opportunity for the school district of residence to resolve the complaint;
and
(iii) The difference between
the due process complaint and the state complaint procedures, including the
jurisdiction of each procedure, what issues may be raised, filing and
decisional timelines, and relevant procedures;
(f) The availability of mediation;
(g) The child's placement during the pendency
of any due process complaint;
(h)
Procedures for children who are subject to placement in an interim alternative
educational setting;
(i)
Requirements for unilateral placement by parents of children in nonpublic
schools at public expense;
(j)
Hearings on due process complaints, including requirements for disclosure of
evaluation results and recommendations;
(k) State-level appeals;
(l) Civil actions, including the time period
in which to file those actions; and
(m) Attorneys' fees.
(4) Notice in understandable language
The notice required under paragraph (I)(1) of this rule must meet the requirements of paragraph (H)(3) of this rule.
(J) Electronic mail
A
(K)
Conflict
Dispute
resolution
(13)(12) Hearing decisions
(14)(13)
Finality of decision; appeal; impartial review
(15)(14) Timelines and
convenience of hearings and reviews
(16)(15)
Cost of hearings
(17)(16) Civil action
(18)(17)
Attorneys' fees
(19)(18) Child's status
during proceedings
(20)(19) Authority of
school personnel
(21)(20) Determination of
setting
(22)(21) Appeal
(23)(22) Placement during
appeals
(24)(23) Protections for
children not determined eligible for special education and related services
(25)(24) Referral to and
action by law enforcement and judicial authorities
(26)(25) Change of
placement because of disciplinary removals
(1) Administrative reviews
(a) Administrative reviews are recommended,
but cannot be used to delay or deny an impartial due process hearing that has
been requested in writing or to deny any other rights afforded under this
chapter of the Administrative Code.
(b) The child's parent or educational agency
other than the school district of residence may
request an opportunity to present complaints to the superintendent.
(i) Within twenty school days of receipt of a
complaint, the superintendent, or the superintendent's designee, without undue
delay and at a time and place convenient to all parties, shall conduct a
review, may hold an administrative hearing, and shall notify all parties in
writing of the superintendent's or designee's
decision.Where the child is placed in a program
operated by a county board of developmental disabilities or other educational
agency , the superintendent will consult with the administrator of that board or
agency.
(ii) Every effort
should be made in the review to resolve any disagreements.
(iii) All parties have the right to invite
others to participate in the administrative review, including legal
counsel.
(2)
Model forms
(a) The Ohio department of
education must develop model forms to assist parents and public agencies in
filing a due process complaint in accordance with paragraphs (K)(7)(a) and
(K)(8)(a) to (K)(8)(c) of this rule and to assist parents and other parties in
filing a state complaint under paragraphs (K)(4) to (K)(6) of this rule.
However, the Ohio department of education or school district of residence may
not require the use of the model forms.
(b) Parents,
school district s
educational agencies , public agencies, and other
parties may use the appropriate model form described in paragraph (K)(2)(a) of
this rule, or another form or other document, so long as the form or document
that is used meets, as appropriate, the content requirements in paragraph
(K)(8)(b) of this rule for filing a due process complaint, or the requirements
in paragraph (K)(6)(b) of this rule for filing a state complaint.
(3) Mediation
(a) General
The Ohio department of education shall establish state
mediation procedures. Additionally, each
(b)
Requirements
The
procedures must meet the following requirements:
The procedures must meet the following requirements:
(i) The procedures must ensure that the
mediation process:
(a) Is voluntary on the
part of the parties;
(b) Is not
used to deny or delay a parent 's right to a hearing on the parent 's due process
complaint, or to deny any other rights afforded under Part B of the IDEA ;
and
(c) Is conducted by a qualified
and impartial mediator who is trained in effective mediation
techniques.
(ii) A
school district of residence may establish procedures to offer to parents and
schools that choose not to use the mediation process, an opportunity to meet,
at a time and location convenient to the parents, with a disinterested party:
(a) Who is under contract with an appropriate
alternative dispute resolution entity, or a parent training and information
center or community parent resource center in the state established under
Section 671 or 672 of the IDEA ; and
(b) Who would explain the benefits of, and
encourage the use of, the mediation process to the parents.
(iii) The Ohio department of
education shall maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special
education and related services .
(iv) The Ohio department of education shall
select mediators on a random, rotational, or other impartial basis.
Both parties to the mediation must be involved in
selecting the mediators and agree with the selection.
(v) The Ohio department of education shall
bear the cost of the mediation process, including the costs of meetings
described in paragraph (K)(3)(b)(ii) of this rule.
(vi) Each session in the mediation process
must be scheduled in a timely manner and must be held in a location that is
convenient to the parties to the dispute.
(vii) If the parties resolve a dispute
through the mediation process, the parties must execute a legally binding
agreement that sets forth that resolution and that:
(a) States that all discussions that occurred
during the mediation process will remain confidential and may not be used as
evidence in any subsequent due process hearing or civil proceeding;
and
(b) Is signed by both the
parent and a representative of the
school
district
educational agency
who has the
authority to bind such
school district
educational agency
.
(viii) A written, signed mediation agreement
under this paragraph is enforceable in any state court of competent
jurisdiction or in a district court of the United States.
(ix) If the mediation requires changes in the
IEP
individualized
education program
, the IEP
individualized education program
team shall be
notified of the results of the mediation and the
individualized education program team will
convened
convene to
incorporate changes into the IEP within twenty school days following the
mediation agreement or as agreed to in the mediation agreement.
(x) No part of the mediation discussion or
sessions may be electronically recorded. Discussions that occur during the
mediation process must be confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding of any federal court or
state court of a state receiving assistance under the IDEA . The mediator may
not be called as a witness in future proceedings related to the mediation
sessions.
(c)
Impartiality of mediator
(i) An individual
who serves as a mediator under this rule:
(a)
May not be an employee of the Ohio department of education or any
school district
educational agency
or agency that is involved in the
education or care of the child; and
(b) Must not have a personal or professional
interest that conflicts with the person's objectivity.
(ii) A person who otherwise qualifies as a
mediator is not an employee of a school district of residence or state agency
that receives a subgrant under Section 611 of the IDEA solely because the
person is paid by the agency to serve as a mediator.
(4) Adoption of state complaint
procedures
(a) General
The Ohio department of education shall adopt written procedures for:
(i) Resolving any complaint,
including a complaint filed by an organization or individual from another
state, that meets the requirements of paragraph (K)(6) of this rule by:
(a) Providing for the filing of a complaint
with the Ohio department of education; and
(b) At the Ohio department of education's
discretion, providing for the filing of a complaint with a school district of
residence and the right to have the Ohio department of education review the
school district of residence 's decision on the complaint; and
(ii) Widely disseminating to
parents and other interested individuals, including parent training and
information centers, protection and advocacy agencies, independent living
centers, and other appropriate entities, the state procedures under paragraphs
(K)(4) to (K)(6) of this rule.
(b) Remedies for denial of appropriate
services
In resolving a complaint in which the Ohio department of
education has found a failure to provide appropriate services, the Ohio
department of education, pursuant to its general supervisory authority under
Part B of the
(i)
The failure to provide appropriate services, including corrective action
appropriate to address the needs of the child (such as compensatory services or
monetary reimbursement); and
(ii)
Appropriate future provision of services for all children with
disabilities.
(5) Minimum state complaint procedures
(a) Time limit; minimum procedures
The Ohio department of education shall paragraph (K)(6) of this rule to:
(i) Carry out an independent on-site
investigation, if the Ohio department of education determines that an
investigation is necessary;
(ii)
Give the complainant the opportunity to submit additional information, either
orally or in writing, about the allegations in the complaint;
(iii) Provide the school district of
residence with the opportunity to respond to the complaint, including, at a
minimum:
(a) At the discretion of the school
district of residence , a proposal to resolve the complaint; and
(b) An opportunity for a parent who has filed
a complaint and the school district of residence to voluntarily engage in
mediation consistent with paragraph (K)(3) of this rule;
(iv) Review all relevant information and make
an independent determination as to whether the
school district
educational
agency
is violating a requirement of Part B of the IDEA or of this rule;
and
(v) Issue a written decision to
the complainant that addresses each allegation in the complaint and contains:
(a) Findings of fact and conclusions;
and
(b) The reasons for the Ohio
department of education's final decision.
(b) Time extension; final decision;
implementation
The Ohio department of education's procedures described in paragraph (K)(5)(a) of this rule also shall:
(i) Permit an extension of the time limit
under paragraph (K)(5)(a) of this rule only if:
(a) Exceptional circumstances exist with
respect to a particular complaint; or
(b) The parent and the school district of
residence involved agree to extend the time to engage in mediation pursuant to
paragraph (K)(5)(a)(iii)(b) of this rule,
or to engage in other alternative means of dispute resolution, including, but
not limited to, an administrative review; and
(ii) Include procedures for effective
implementation of the Ohio department of education's final decision, if needed,
including:
(a) Technical assistance
activities;
(b) Negotiations;
and
(c) Corrective actions to
achieve compliance.
(c) Complaints and due process hearings filed
under this rule
(i) If a written complaint is
received that is also the subject of a due process hearing under this rule, or
contains multiple issues of which one or more are part of that hearing, the
Ohio department of education shall set aside any part of the complaint that is
being addressed in the due process hearing until the conclusion of the hearing.
However, any issue in the complaint that is not a part of the due process
action must be resolved using the time limit and procedures described in
paragraphs (K)(5)(a) and (K)(5)(b) of this
rule.
(ii) If an issue raised in a
complaint filed under this rule has previously been decided in a due process
hearing involving the same parties:
(a) The
due process hearing decision is binding on that issue; and
(b) The Ohio department of education shall
inform the complainant to that effect.
(iii) A complaint alleging a school district
of residence 's failure to implement a due process hearing decision shall be
resolved by the Ohio department of education.
(6) Filing a complaint
(a) An organization or individual may file a
signed written complaint under the procedures described in paragraphs (K)(4) to
(K)(5) of this rule.
(b) The
complaint must include :
(i) A statement that a
school district of residence has violated a requirement of Part B of the IDEA
or of this rule;
(ii) The facts on
which the statement is based;
(iii)
The signature and contact information for the complainant; and
(iv) If alleging violations with respect to a
specific child:
(a) The name and address of
the residence of the child;
(b) The
name of the school the child is attending;
(c) In the case of a homeless child or youth
(within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance
Act (42 U.S.C.
11434a(2)
, as amended and specified in Title X, Part C, of
the No Child Left Behind Act of 2001, January 2002, 42 U.S.C. 11431),
available contact information for the child, and the name of the school the
child is attending;
(d) A
description of the nature of the problem of the child, including facts relating
to the problem; and
(e) A proposed
resolution of the problem to the extent known and available to the party at the
time the complaint is filed.
(c) The complaint must allege a violation
that occurred not more than one year prior to the date that the complaint is
received in accordance with paragraph (K)(4)
of this rule.
(d) The
party filing the complaint must forward a copy of the complaint to the school
district of residence at the same time the party files the complaint with the
Ohio department of education.
(7) Filing a due process complaint
(a) General
(i) A parent or a
school district , county board of DD, or other
an educational agency may file a due process
complaint on any of the matters described in paragraphs (H)(1)(a) and (H)(1)(b) of this rule
relating to the identification, evaluation or educational placement of a child
with a disability , or the provision of FAPE
"Free Appropriate Public Education " to the
child.
(ii) The due process
complaint must allege a violation that occurred not more than two years before
the date the parent or public agency knew or should have known about the
alleged action that forms the basis of the due process complaint, except that
the exceptions to the timeline described in paragraph (K)(10)(f) of this rule
apply to the timeline in this paragraph.
(b) Information for parents
The
(i) The parent requests the
information; or
(ii) The parent or
the school district files a due process complaint under this rule.
(c) Hearing requested by
someone other than parent
an educational agency
If a hearing has been requested by someone other than the child's
(8) Due process complaint
(a) General
(i) The Ohio department of education shall
establish state due process procedures. Additionally, the
school district or public
educational agency must have procedures that
require either party, or the attorney representing a party, to provide to the
other party a due process complaint (which must remain confidential).
(ii) The party filing a due process complaint
must forward a copy of the due process complaint to the Ohio department of
education.
(b) Content
of complaint
The due process complaint required in
paragraph (K)(8)(a)(i) of this rule must
(i) The name of the
child;
(ii) The address of the
residence of the child;
(iii) The
name of the school the child is attending;
(iv) In the case of a homeless child or youth
(within the meaning of Section 725(2) of the McKinney-Vento Homeless Assistance
Act (42 U.S.C.
11434a(2)
, as amended and specified in Title X, Part C, of
the No Child Left Behind Act of 2001, January 2002, 42 U.S.C. 11431),
available contact information for the child, and the name of the school the
child is attending;
(v) A
description of the nature of the problem of the child relating to the proposed
or refused initiation or change, including facts relating to the problem;
and
(vi) A proposed resolution of
the problem to the extent known and available to the party at the
time.
(c) Notice
required before a hearing on a due process complaint
A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements of paragraph (K)(8)(b) of this rule.
(d) Appointment of
hearing officer
Upon receipt of a request for a due process hearing, the Ohio
department of education, office for exceptional children, will appoint an
impartial hearing officer from a list of attorneys maintained by the office for
exceptional children.
(i)
Notifying all parties of the date, time and location of
the hearing;
(ii)
Arranging a disclosure conference at least five
business days prior to the hearing to assure that information to be presented
at the hearing is disclosed;
(iii)
Issuing a
subpoena or a subpoena duces tecum when relevant, necessary, and material, with
fees and mileage paid by the party requesting the subpoena;
(iv)
Either party may
request subpoenas to compel the attendance of witnesses at the hearing. Either
party may request subpoenas duces tecum to compel the witnesses to bring
specified documents to the hearing. Requests for subpoenas duces tecum are
submitted to the hearing officer. The hearing officer signs the
subpoenas;
(v)
A subpoena may be served by an attorney at law, or by
any person who is not a party and over the age of eighteen. Service of a
subpoena upon a person named therein shall be made by delivering a copy of the
subpoena to the person, by reading it to him or her in person, or by leaving it
at the person's usual place of residence. Service of subpoenas is solely the
responsibility of the party requesting the subpoena and shall not be assumed by
the impartial hearing officer;
(vi)
Ruling on
procedural issues presented at the hearing; and
(vii)
Arriving at a
written decision based solely on evidence and testimony presented at the
hearing and mailing such decision, by certified mail, to the parties involved
and the Ohio department of education, office for exceptional
children.
(e)
Sufficiency of complaint
(i) The due process
complaint required by this rule must be deemed sufficient unless the party
receiving the due process complaint notifies the hearing officer and the other
party in writing, within fifteen days of receipt of the due process complaint,
that the receiving party believes the due process complaint does not meet the
requirements in paragraph (K)(8)(b) of this rule.
(ii) The appointed hearing officer shall
handle all phases of the due process request, including, but not limited to,
whether a determination of insufficiency should result in the amendment or
dismissal of a due process complaint.
(iii) Within five days of receipt of the
notification under paragraph (K)(8)(e)(i) of this rule, the hearing officer
must make a determination on the face of the due process complaint of whether
the due process complaint meets the requirements of paragraph (K)(8)(b) of this
rule, and must immediately notify the parties in writing of that determination.
The hearing officer shall review the sufficiency issues in accordance with the following:
(a) The
hearing officer shall make a determination on the face of the due process
complaint no later than five days after receipt of the notification under
paragraph (K)(8)(e)(i) of this rule;
(b) The hearing officer shall
immediately notify all parties of that written
determination on the same date the determination is made;
(c) If the due process complaint is
determined to be insufficient, the determination shall include :
(i) The reasons for the determination of
insufficiency;
(ii) A statement in
clear language that the case has not been dismissed;
(iii) The case cannot go to hearing until a
due process notice is filed which meets the requirements of paragraph (K)(8)(b)
of this rule; and
(iv) Notice of
resources to assist parents without counsel in completing due process
complaints and in correcting deficiencies included in the finding of
insufficiency by the hearing officer, including, but not limited to, the
identity and contact information of the employee at the Ohio department of
education who is qualified to answer parents' questions about the required
information specified in paragraph (K)(8)(b) of this rule that must be included
in a due process complaint notice.
(iv) A party may amend its due process
complaint only if:
(a) The other party
consents in writing to the amendment and is given the opportunity to resolve
the due process complaint through a meeting held pursuant to paragraph (K)(9)
of this rule; or
(b) The hearing
officer grants permission, except that the hearing officer may only grant
permission to amend at any time not later than five days before the due process
hearing begins.
(v) If a
party files an amended due process complaint, the timelines for the resolution
meeting in paragraph (K)(9)(a) of this rule and the time period to resolve in
paragraph (K)(9)(b) of this rule begin again with the filing of the amended due
process complaint.
(f) School district of residence response to
a due process complaint
(i) If the school
district of residence has not sent a prior written notice under paragraph (H)
of this rule to the parent regarding the subject matter contained in the
parent 's due process complaint, the school district of residence must, within
ten days of receiving the due process complaint, send to the parent a response
that includes:
(a) An explanation of why the
school district of residence proposed or refused to take the action raised in
the due process complaint;
(b) A
description of other options that the IEP team considered and the reasons why
those options were rejected;
(c) A
description of each evaluation procedure, assessment, record, or report the
school district of residence used as the basis for the proposed or refused
action; and
(d) A description of
the other factors that are relevant to the school district of residence 's
proposed or refused action.
(ii) A response by a school district of
residence under paragraph (K)(8)(f)(i) of this rule shall not be construed to
preclude the school district from asserting that the parent 's due process
complaint was insufficient, where appropriate.
(g) Other party response to a due process
complaint
Except as provided in paragraph (K)(8)(f) of this rule, the party receiving a due process complaint must, within ten days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.
(9) Resolution process
(a) Resolution meeting
(i) Within fifteen days of receiving notice
of the parent 's due process complaint, and prior to the initiation of a due
process hearing under paragraph (K)(10) of this rule, the school district of
residence must convene a meeting with the parent and the relevant member or
members of the IEP team who have specific knowledge of the facts identified in
the due process complaint that:
(a) Includes
a representative of the school district of residence who has decision-making
authority on behalf of that district; and
(b) May not include an attorney of the school
district of residence unless the parent is accompanied by an
attorney.
(ii) The
purpose of the meeting is for the parent of the child to discuss the due
process complaint, and the facts that form the basis of the due process
complaint, so that the school district of residence has the opportunity to
resolve the dispute that is the basis for the due process complaint.
(iii) The meeting described in paragraphs
(K)(9)(a)(i) and (K)(9)(a)(ii) of this rule need not be held if:
(a) The parent and the school district of
residence agree in writing to waive the meeting; or
(b) The parent and the school district of
residence agree to use the mediation process described in paragraph (K)(3) of
this rule.
(iv) The
parent and the school district of residence determine the relevant members of
the IEP team to attend the meeting.
(b) Resolution period
(i) If the school district
of residence has not resolved the due process
complaint to the satisfaction of the parent within thirty days of the receipt
of the due process complaint, the due process hearing may occur.
(ii) Except as provided in paragraph
(K)(9)(c) of this rule, the timeline for issuing a final decision under
paragraph (K)(15)
(K)(14) of this rule begins at the expiration of this
thirty-day period.
(iii) Except
where the parties have jointly agreed to waive the resolution process or to use
mediation, notwithstanding paragraphs (K)(9)(b)(i) and (K)(9)(b)(ii) of this
rule, the failure of the parent filing a due process complaint to participate
in the resolution meeting will delay the timelines for the resolution process
and due process hearing until the meeting is held.
(iv) If the school district of residence is
unable to obtain the participation of the parent in the resolution meeting
after reasonable efforts have been made (and documented using the procedures in
rule 3301-51-07 of the Administrative
Code), the school district of residence may, at the conclusion of the
thirty-day period, request that a hearing officer dismiss the parent 's due
process complaint.
(v) If the
school district of residence fails to hold the resolution meeting specified in
paragraph (K)(9)(a) of this rule within fifteen days of receiving notice of a
parent 's due process complaint or fails to participate in the resolution
meeting, the parent may seek the intervention of a hearing officer to begin the
due process hearing timeline.
(c) Adjustments to thirty-day resolution
period
The forty-five-(K)(15)
(i) Both parties
agree in writing to waive the resolution meeting;
(ii) After either the mediation or resolution
meeting starts but before the end of the thirty-day period, the parties agree
in writing that no agreement is possible;
(iii) If both parties agree in writing to
continue the mediation at the end of the thirty-day resolution period, but
later, the parent or school district of residence withdraws from the mediation
process.
(d) Written
settlement agreement
If a resolution to the dispute is reached at the meeting described in paragraphs (K)(9)(a)(i) and (K)(9)(a)(ii) of this rule, the parties must execute a legally binding agreement that:
(i) States that all discussions that occurred
during the resolution process shall be confidential and shall not be used as
evidence in any subsequent due process hearing or civil procedure;
(ii) Is signed by both the parent and a
representative of the school district of residence who has the authority to
bind the district; and
(iii) Is
enforceable in any state court of competent jurisdiction or in a district court
of the United States.
(e) Agreement review period
If the parties execute an agreement pursuant to paragraph (K)(9)(d) of this rule, a party may void the agreement within three business days of the agreement's execution.
(10) Impartial due process hearing
(a) General
Whenever a due process complaint is received under paragraph
(K)(7) or (K)(22
(b)
School district
Educational agency
responsible for conducting the due
process hearing
The hearing described in paragraph
(K)(10)(a) of this rule must be conducted by the
(c) Impartial
hearing officer
(i) At a minimum, a hearing
officer:
(a) Must not be:
(i) An employee of the Ohio department of
education or the school district that is involved in the education or care of
the child; or
(ii) A person having
a personal or professional interest that conflicts with the person's
objectivity in the hearing;
(b) Must possess knowledge of, and the
ability to understand, the provisions of the IDEA , federal and state
regulations pertaining to the IDEA , and legal interpretations of the IDEA by
federal and state courts;
(c) Must
possess the knowledge and ability to conduct hearings in accordance with
appropriate, standard legal practice and be trained in accordance with
requirements set forth by the office of exceptional children;
(d) Must possess the knowledge and ability to
render and write decisions in accordance with appropriate, standard legal
practice; and
(e) Must be an
attorney licensed to practice law in Ohio who has successfully completed all
training required by the Ohio department of education.
(ii) A person who otherwise qualifies to
conduct a hearing under paragraph (K)(10)(c)(i) of this rule is not an employee
of the school district solely because the person is paid by the school district
of residence to serve as a hearing officer.
(iii) Each public agency must keep a list of
the persons who serve as hearing officers. The list must include a statement of
the qualifications of each of those persons.
(iv) The Ohio department of education, office
for exceptional children may require any and all current hearing or state level
review officers to reapply for eligibility to remain on the list. Training
sessions are a mandatory requirement to remain eligible for appointments. In
addition, being on the list of possible hearing or state level review officers
should not be considered a guarantee or expectation of appointment.
(d) Subject matter of due process
hearings
The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process complaint filed under paragraph (K)(8)(b) of this rule, unless the other party agrees otherwise.
(e)
Timeline for requesting a hearing
A
(f)
Exceptions to the timeline
The timeline described in paragraph (K)(10)(e) of this rule
does not apply to a
(i) Specific
misrepresentations by the
school district
educational agency
that it had resolved the
problem forming the basis of the due process complaint; or
(ii) The
school
district 's
educational agency 's
withholding of information from the parent that was required under this rule to
be provided to the parent .
(11) Hearing rights
(a) General
Any party to a hearing conducted pursuant to paragraphs (K)(2)
and (K)(7) to (K)(13)
(K)(20)
(K)(24)
(K)(14)
(i) Be accompanied and advised by counsel and
by individuals with special knowledge or training with respect to the problems
of children with disabilities;
(ii)
Present evidence and confront, cross-examine, and compel the attendance of
witnesses;
(iii) Prohibit the
introduction of any evidence at the hearing that has not been disclosed to that
party at least five business days before the hearing;
(iv) Obtain a written, or, at the option of
the parents, electronic, verbatim record of the hearing; and
(v) Obtain written, or, at the option of the
parents, electronic findings of fact and decisions.
(b) Additional disclosure of information
(i) At least five business days prior to
the first day of a hearing conducted pursuant to
paragraph (K)(10)(a) of this rule, each party must disclose to all other
parties all evaluations completed by that date and recommendations based on the
offering party's evaluations that the party intends to use at the
hearing.
(ii) A hearing officer may
bar any party that fails to comply with paragraph (K)(11)(b)(i) of this rule
from introducing the relevant evaluation or recommendation at the hearing
without the consent of the other party.
(c) Parental rights at hearings
Parents involved in hearings must be given the right to:
(i) Have the child who is the subject of the
hearing present;
(ii) Open the
hearing to the public; and
(iii)
Have the record of the hearing and the findings of fact and decisions described
in paragraphs (K)(11)(a)(iv) and
(K)(11)(a)(v) of this rule provided at no cost to
parents.
(12) Responsibility of hearing
officer The impartial hearing officer has the responsibility of conducting the
hearing in accordance with the requirements set forth by the office of
exceptional children, including, but not limited to:
(a) Notifying all parties of the
date, time and location of the hearing;
(b) Arranging a disclosure
conference at least five business days prior to the hearing to assure that
information to be presented at the hearing is disclosed;
(c) Issuing a subpoena or a
subpoena duces tecum when relevant, necessary, and material, with fees and
mileage paid by the party requesting the subpoena;
(i) Either party may request
subpoenas to compel the attendance of witnesses at the hearing. Either party
may request subpoenas duces tecum to compel the witnesses to bring specified
documents to the hearing. Requests for subpoenas duces tecum are submitted to
the hearing officer. The hearing officer signs the subpoenas.
(ii) A subpoena may be served by an
attorney at law, or by any person who is not a party and over the age of
eighteen. Service of a subpoena upon a person named therein shall be made by
delivering a copy of the subpoena to the person, by reading it to him or her in
person, or by leaving it at the person's usual place of residence. Service of
subpoenas is solely the responsibility of the party requesting the subpoena and
shall not be assumed by the impartial hearing officer.
(d) Ruling on procedural issues
presented at the hearing; and
(e) Arriving at a written decision
based solely on evidence and testimony presented at the hearing and mailing
such decision, by certified mail, to the parties involved and the Ohio
department of education, office for exceptional children.
(a) Decision of hearing officer on the
provision of FAPE
"Free Appropriate Public Education "
(i) Subject to paragraph
(K)(13)(a)(ii)
(K)(12)(a)(ii) of this rule, a hearing officer's
determination of whether a child received FAPE
"Free Appropriate
Public Education " must be based on substantive grounds.
(ii) In matters alleging a procedural
violation, a hearing officer may find that a child did not receive
FAPE
"Free
Appropriate Public Education " only if the procedural inadequacies:
(a) Impeded the child's right to
FAPE
"Free
Appropriate Public Education " ;
(b) Significantly impeded the parent 's
opportunity to participate in the decision-making process regarding the
provision of FAPE
"Free Appropriate Public Education " to the parent 's
child; or
(c) Caused a deprivation
of educational benefit.
(iii) Nothing in paragraph
(K)(13)
(K)(12) of this rule shall be construed to preclude a
hearing officer from ordering a school
district
an educational agency
to comply
with procedural requirements under this rule.
(b) Construction clause
Nothing in paragraphs (K)(2) and (K)(7) to
(K)(13)
(c) Separate request for a due process
hearing
Nothing in this rule shall be construed to preclude a
(d) Findings and decision to advisory panel
and general public
The Ohio department of education, after deleting any
(i)
Transmit the findings and decisions referred to in paragraph (K)(11)(a)(v) of
this rule to the state advisory panel which is hereby established and shall be
maintained in accordance with section 3323. 06 of the Revised Code;
and
(ii) Make those findings and
decisions available to the public.
(a) Finality of hearing decision
A decision made in a hearing conducted pursuant to this rule is
final, except that any party involved in the hearing may appeal the decision
under the provisions of paragraphs (K)(14)(b)
(K)17
(b) Appeal of decisions; impartial review
(i) Any party aggrieved by the findings and
decision in the hearing may appeal the findings and decision in writing to the
Ohio department of education within forty-five days of receipt of the hearing
decision in accordance with division (H) of section
3323.05 of the Revised
Code. .
(a) The notice shall set forth
the order appealed and the grounds of the party's appeal; and
(b) A party filing an appeal shall notify the
other party of the filing of the appeal.
(ii) If there is an appeal, the Ohio
department of education must conduct an impartial review of the findings and
decision appealed. Upon receipt of an appeal, the Ohio department of education
shall appoint a state level review officer who will conduct the
review.
(iii) The official
conducting the review must:
(a) Examine the
entire hearing record;
(b) Ensure
that the procedures at the hearing were consistent with the requirements of due
process;
(c) Seek additional
evidence, if necessary. If a hearing is held to receive additional evidence,
the rights in paragraph (K)(11) of this rule apply;
(d) Afford the parties an opportunity for
oral or written argument, or both, at the discretion of the reviewing
official;
(e) Make an independent
decision on completion of the review; and
(f) Give a copy of the written, or, at the
option of the parents, electronic findings of fact and decisions to the
parties.
(c)
Findings and decision to advisory panel and general public
The Ohio department of education, after deleting any
(i)
Transmit the findings and decisions referred to in paragraph
(K)(14)(b)(iii)(f)
(K)(13)(b)(iii)(f) of this rule to the state advisory
panel established under this rule and maintained in accordance with section
3323.06 of the Revised Code;
and
(ii) Make those findings and
decisions available to the public.
(d) Finality of review decision
The decision made by the reviewing official is final unless a
party brings a civil action under paragraph (K)(17)
(a) The
Ohio department of education must ensure that not later than forty-five days
after the expiration of the thirty-day period under paragraph (K)(9)(b) of this
rule, or the adjusted time periods described in paragraph (K)(9)(c) of this
rule:
(i) A final decision is reached in the
hearing; and
(ii) A copy of the
decision is mailed to each of the parties.
(b) The Ohio department of education must
ensure that not later than thirty days after the receipt of a request for a
review:
(i) A final decision is reached in the
review; and
(ii) A copy of the
decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant
specific extensions of time beyond the periods set out in paragraphs
(K)(15)(a)
(K)(14)(a)
(K)(15)(b)
(K)(14)(b)
of this rule at the request of either party.
(d) Each hearing and each review involving
oral arguments must be conducted at a time and place that is reasonably
convenient to the parents and child involved.
(a) The school district of
the child's residence shall provide one copy of the written, or at the option
of the parents, an electronic verbatim record of the hearing and findings of
fact and decisions to the parent at no cost .
(b) All other cost incurred in impartial due
process hearings requested by the parent shall be assumed by the school
district of the child's residence, except as follows:
(i) Expert testimony, outside medical
evaluation , witness fees, subpoena fees, and cost of counsel will be paid by
the party requesting the services; and
(ii) If requested by the parents or their
attorney, additional copies of the record of the hearing and findings of fact
and decisions.
(c) When
a school district , county board of DD, or
other
the educational agency providing
special education and related services to a child requests the impartial due
process hearing, the district, county board of DD,
or other educational agency will share equally the costs of the
hearing with the school district of residence , except those costs included in
paragraph (K)(16)(b)
(K)(15)(b) of this rule.
(d) School districts shall compensate hearing
officers upon invoice at an hourly rate not higher than that established for
special counsel for the state of Ohio. School districts shall compensate
hearing officers for no more than fifty hours of actual hearing time, excluding
work done outside of the hearing, for any due process request unless the
hearing officer submits to the Ohio department of education, office for
exceptional children a written rationale for a hearing to exceed fifty hours of
hearing time.
(e) The Ohio
department of education shall compensate state level review officers upon
invoice at an hourly rate not higher than that established for special counsel
for the state of Ohio.
(a) General
Any party aggrieved by the findings and decision under
paragraph (K)(14)(b)
(K)(20)
(K)(22)
(b) Time limitation
The party bringing the action shall have ninety days from the date of the decision of the state review official, to bring a civil action in the district court of the United States, or shall within forty-five days of notification of the decision of the state review official, appeal the final order to the common pleas court of the county of the child's district of residence as provided by section 3323.05 of the Revised Code.
(c) Additional
requirements
In any action brought under paragraph
(K)(17)(a)
(i) Receives the records of the
administrative proceedings;
(ii)
Hears additional evidence at the request of a party; and
(iii) Basing its decision on the
preponderance of the evidence, grants the relief that the court determines to
be appropriate.
(d)
Jurisdiction of district courts
The district courts of the United States have jurisdiction of
actions brought under Section 615 of the
(e) Rule of
construction
Nothing in this rule restricts or limits the rights,
procedures, and remedies available under the United States Constitution, the
Americans with Disabilities (K)(14)
(a) In general
In any action or proceeding brought under Section 615 of the
(i) The
prevailing party who is the parent of a child with a disability ;
(ii) To a prevailing party who is the Ohio
department of education or a school
district
an educational agency
against
the attorney of a parent who files a complaint or subsequent cause of action
that is frivolous, unreasonable, or without foundation, or against the attorney
of a parent who continued to litigate after the litigation clearly became
frivolous, unreasonable, or without foundation; or
(iii) To a prevailing Ohio department of
education or school district against the attorney of a parent , or against the
parent , if the parent 's request for a due process hearing or subsequent cause
of action was presented for any improper purpose, such as to harass, to cause
unnecessary delay, or to needlessly increase the cost of litigation.
(b) Prohibition on use of funds
(i) Funds under Part B of the IDEA may not be
used to pay attorneys' fees or costs of a party related to any action or
proceeding under Section 615 of the IDEA and Subpart E of Part B of the
IDEA .
(ii) Paragraph
(K)(18)(b)(i)
(K)(17)(b)(i) of this rule does not preclude the Ohio
department of education or a school
district
an educational agency from
using funds under Part B of the IDEA for conducting an action or proceeding
under Section 615 of the IDEA .
(c) Award of fees
A court awards reasonable attorneys' fees under Section
615(i)(3) of the
(i) Fees awarded under Section 615(i)(3) of
the IDEA must be based on rates prevailing in the community in which the action
or proceeding arose for the kind and quality of services furnished. No bonus or
multiplier may be used in calculating the fees awarded under this
paragraph.
(ii) Attorneys' fees may
not be awarded and related costs may not be reimbursed in any action or
proceeding under Section 615 of the IDEA for services performed subsequent to
the time of a written offer of settlement to a parent if:
(a) The offer is made within the time
prescribed by rule 68 of the "Federal Rules of Civil Procedure" or, in the case
of an administrative proceeding, at any time more than ten days before the
proceeding begins;
(b) The offer is
not accepted within ten days; and
(c) The court or administrative hearing
officer finds that the relief finally obtained by the parents is not more
favorable to the parents than the offer of settlement.
(iii) Attorneys' fees may not be awarded
relating to any meeting of the IEP team unless the meeting is convened as a
result of an administrative proceeding or judicial action, or at the discretion
of the state, for a mediation described in paragraph (K)(3) of this
rule.
(iv) A meeting conducted
pursuant to paragraph (K)(9) of this rule shall not be considered:
(a) A meeting convened as a result of an
administrative hearing or judicial action; or
(b) An administrative hearing or judicial
action for purposes of this rule.
(v) Notwithstanding paragraph
(K)(18)(c)(ii)
(K)(17)(c)(ii) of this rule, an award of attorneys'
fees and related costs may be made to a parent who is the prevailing party and
who was substantially justified in rejecting the settlement offer.
(vi) Except as provided in paragraph
(K)(18)(c)(vii)
(K)(17)(c)(vii) of this rule, the court reduces,
accordingly, the amount of the attorneys' fees awarded under Section 615 of the
IDEA , if the court finds that:
(a) The parent ,
or the parent 's attorney, during the course of the action or proceeding,
unreasonably protracted the final resolution of the controversy;
(b) The amount of the attorneys' fees
otherwise authorized to be awarded unreasonably exceeds the hourly rate
prevailing in the community for similar services by attorneys of reasonably
comparable skill, reputation, and experience;
(c) The time spent and legal services
furnished were excessive considering the nature of the action or proceeding;
or
(d) The attorney representing
the parent did not provide to the
school
district
educational agency
the
appropriate information in the due process request notice in accordance with
paragraph (K)(8) of this rule.
(vii) The provisions of paragraph
(K)(18)(c)(vi)
(K)(17)(c)(vi) of this rule do not apply in any action
or proceeding if the court finds that the state or
school district
educational
agency
unreasonably protracted the final resolution of the action or
proceeding or there was a violation of Section 615 of the IDEA .
(a) Except as provided in
paragraph (K)(23)
(K)(22) of this rule, during the pendency of any
administrative or judicial proceeding regarding a due process complaint notice
requesting a due process hearing under paragraph (K)(7) of this rule, unless
the state or school district of residence and the parents of the child agree
otherwise, the child involved in the complaint must remain in the child's
current educational placement.
(b)
If the complaint involves an application for initial admission to the school
district , the child, with the consent of the parents, must be placed in the
school district until the completion of all the proceedings.
(c) If the complaint involves an application
for initial services under this rule from a child who is transitioning from
Part C of the IDEA to Part B of the IDEA and is no longer eligible for Part C
services because the child has turned three, the public agency is not required
to provide the Part C services that the child had been receiving. If the child
is found eligible for special education and related services under Part B and
the parent consents to the initial provision of special education and related
services under rule
3301-51-06 of the Administrative
Code, then the school district must provide those special education and related
services that are not in dispute between the parent and the school district of
residence .
(d) If the state level
review officer in an administrative appeal conducted by the Ohio department of
education agrees with the child's parents that a change of placement is
appropriate, that placement must be treated as an agreement between the state
and the parents for purposes of paragraph (K)(19)(a)
(K)(18)(a)
of this rule.
(a) Case-by-case
determination
School personnel may consider any unique circumstances on a
case-by-case basis when determining whether a change in placement, consistent
with the other requirements of this rule, is appropriate for a
(b) General
(i) School personnel under this rule may
remove a child with a disability who violates a code of student conduct from
the child's current placement to an appropriate interim alternative educational
setting, another setting, or suspension, for not more than ten consecutive
school days (to the extent those alternatives are applied to children without
disabilities), and for additional removals of not more than ten consecutive
school days in that same school year for separate incidents of misconduct (as
long as those removals do not constitute a change of placement under paragraph
(K)(26)
(K)(25) of this rule).
(ii) After a child with a disability has been
removed from the child's current placement for ten school days in the same
school year, during any subsequent days of removal the
school district
educational agency
must provide services to the extent
required under paragraph (K)(20)(d)
(K)(19)(d) of this rule.
(c) Additional authority
For disciplinary changes in placement that would exceed ten
consecutive school days, if the behavior that gave rise to the violation of the
school code is determined not to be a manifestation of the child's disability
pursuant to paragraph (K)(20)(e)
(K)(20)(d)
(d) Services
(i) A child with a disability who is removed
from the child's current placement pursuant to paragraph
(K)(20)(c)
(K)(19)(c) or (K)(20)(g)
(K)(19)(g) of this rule must:
(a) Continue to receive educational services,
as provided in rule
3301-51-02 of the Administrative
Code, so as to enable the child to continue to participate in the general
education curriculum, although in another setting, and to progress toward
meeting the goals set out in the child's IEP; and
(b) Receive, as appropriate, a functional
behavioral assessment, and behavioral intervention services and modifications,
that are designed to address the behavior violation so that it does not
recur.
(ii) The services
required by paragraphs (K)(20)(d)(i)
(K)(19)(d)(i) , (K)(20)(d)(iii)
(K)(19)(d)(iii) , (K)(20)(d)(iv)
(K)(19)(d)(iv) , and (K)(20)(d)(v) of this rule may be provided in an
interim alternative educational setting.
(iii) A school district is only required to
provide services during periods of removal to a child with a disability who has
been removed from the child's current placement for ten school days or less in
that school year, if it provides services to a child without disabilities who
is similarly removed.
(iv) After a
child with a disability has been removed from the child's current placement for
ten school days in the same school year, if the current removal is for not more
than ten consecutive school days and is not a change of placement under this
rule, school personnel, in consultation with at least one of the child's
teachers, determine the extent to which services are needed, as provided in
rule 3301-51-02 of the Administrative
Code, so as to enable the child to continue to participate in the general
education curriculum, although in another setting, and to progress toward
meeting the goals set out in the child's IEP.
(v) If the removal is a change of placement
under this rule, the child's IEP team determines appropriate services under
paragraph (K)(20)(d)(i)
(K)(19)(d)(i) of this rule.
(e) Manifestation determination
(i) Within ten school days of any decision to
change the placement of a child with a disability because of a violation of a
code of student conduct, the
school
district
educational agency
, the parent ,
and relevant members of the child's IEP team (as determined by the parent and
the
school district
educational agency
) must review all relevant
information in the child's file, including the child's IEP, any teacher
observations, and any relevant information provided by the parents to
determine:
(a) If the conduct in question was
caused by, or had a direct and substantial relationship to, the child's
disability; or
(b) If the conduct
in question was the direct result of the
school
district 's
educational agency 's failure
to implement the IEP.
(ii) The conduct must be determined to be a
manifestation of the child's disability if the
school district
educational
agency
, the parent , and relevant members of the child's IEP team
determine that a condition in either paragraph (K)(20)(e)(i)(a)
(K)(19)(e)(i)(a) or (K)(20)(e)(i)(b)
(K)(19)(e)(i)(b) of this rule was met.
(iii) If the
school district
educational
agency
, the parent , and relevant members of the child's IEP team
determine the condition described in paragraph (K)(20)(e)(i)(b)
(K)(19)(e)(i)(b) of this rule was met, the
school district
educational agency
must take immediate steps to remedy
those deficiencies.
(f)
Determination that behavior was a manifestation
If the
(i) Either:
(a) Conduct a functional behavioral
assessment unless the
school district
educational agency
had conducted a functional
behavioral assessment before the behavior that resulted in the change of
placement occurred, and implement a behavioral intervention plan for the child;
or
(b) If a behavioral intervention
plan already has been developed, review the behavioral intervention plan and
the implementation of the plan, and modify it, as necessary, to address the
behavior; and
(ii)
Except as provided in paragraph (K)(20)(g)
(K)(19)(g) of this rule, return the child to the
placement from which the child was removed, unless the parent and the
school district
educational agency
agree to a change of placement as
part of the modification of the behavioral intervention plan.
(g) Special circumstances
School personnel may remove a child to an interim alternative educational setting for not more than forty-five school days without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child:
(i) Carries
a weapon to or possesses a weapon at school, on school premises, or to or at a
school function under the jurisdiction of the Ohio department of education or
a school district
an educational agency
;
(ii) Knowingly possesses or uses illegal
drugs, or sells or solicits the sale of a controlled substance, while at
school, on school premises, or at a school function under the jurisdiction of
the Ohio department of education or a school
district
an educational agency
;
or
(iii) Has inflicted serious
bodily injury upon another person while at school, on school premises, or at a
school function under the jurisdiction of the Ohio department of education or
a school district
an educational agency
.
(h) Notification
On the date on which the decision is made to make a removal
that constitutes a change of placement of a
(i) The following terms are defined as they
are used in this rule:
(a) "Controlled
substance" means a drug or other substance identified under schedules I, II,
III, IV, or V in Section 202(c) of the Controlled Substances Act as amended and
specified in the Anabolic Steroids Control Act of 1990, November 1990,
21 U.S.C.
812(c).
(b) "Illegal drug" means a controlled
substance; but does not include a controlled substance that is legally
possessed or used under the supervision of a licensed health-care professional
or that is legally possessed or used under any other authority under that act
or under any other provision of federal law.
(c) "Serious bodily injury" has the meaning
given the term "serious bodily injury" under paragraph (3) of subsection (h) of
section 1365 of Title 18, United States Code (December 2, 2002).
(d) "Weapon" has the meaning given the term
"dangerous weapon" under paragraph (2) of the first subsection (g) of section
930 of Title 18, United States Code (January 7, 2008).
The child's IEP team determines the interim alternative
educational setting for services under paragraph (K)(20)
(a) General
The (K)(20)
(K)(21)
(K)(20)(e)
a
(b)
Authority of hearing officer
(i) A hearing
officer under paragraph (K)(10) of this rule hears and makes a determination
regarding an appeal.
(ii) In making
the determination under paragraph (K)(22)(b)(i)
(K)(21)(b)(i) of this rule, the hearing officer may:
(a) Return the child with a disability to the
placement from which the child was removed if the hearing officer determines
that the removal was a violation of paragraph (K)(20)
(K)(19) of
this rule or that the child's behavior was a manifestation of the child's
disability; or
(b) Order a change
of placement of the child with a disability to an appropriate interim
alternative educational setting for not more than forty-five school days if the
hearing officer determines that maintaining the current placement of the child
is substantially likely to result in injury to the child or to
others.
(iii) The
procedures under paragraphs (K)(22)(a)
(K)(21)(a) , (K)(22)(b)(i)
(K)(21)(b)(i) , and (K)(22)(b)(ii)
(K)(21)(b)(ii) of this rule may be repeated, if the
school district
educational agency
believes that returning the child
to the original placement is substantially likely to result in injury to the
child or to others.
(c)
Expedited due process hearing
(i) Whenever a
hearing is requested under paragraph (K)(22)(a)
(K)(21)(a)
of this rule, the parents or the
school
district
educational agency
involved in
the dispute must have an opportunity for an impartial due process hearing
consistent with the requirements of this rule, except as provided in paragraphs (K)(7), (K)(8)(a)
to (K)(8)(d), and (K)(9) to (K)(14)
(K)(13) of this rule except as provided in paragraphs (K)(21)(c)(ii) to
(K)(21)(c)(iv) of this rule .
(ii) The Ohio department of education or the
school district of residence is responsible for arranging the expedited due
process hearing, which must occur within twenty school days of the date the
complaint requesting the hearing is filed. The hearing officer must make a
determination within ten school days after the hearing.
(iii) Unless the parents and school district
of residence agree in writing to waive the resolution meeting described in
paragraph (K)(22)(c)(iii)(a)
(K)(21)(c)(iii)(a) of this rule, or agree to use
the mediation process described in paragraph (K)(3) of this rule:
(a) A resolution meeting must occur within
seven days of receiving notice of the due process complaint; and
(b) The due process hearing may proceed
unless the matter has been resolved to the satisfaction of both parties within
fifteen days of the receipt of the due process complaint.
(iv) The Ohio department of education may
establish different state-imposed procedural rules for expedited due process
hearings conducted under this rule than it has established for other due
process hearings, but, except for the timelines as modified in paragraph
(K)(22)(c)(iii)
(K)(21)(c)(iii) of this rule, the state must ensure
that the requirements in paragraphs (K)(9) to (K)(14)
(K)(13) ) of
this rule are met.
(v) The
decisions on expedited due process hearings are appealable consistent with
paragraph (K)(14)
(K)(13) ) of this rule.
(d) Procedures for expedited due process
hearings
(i) If a parent requests an
expedited due process hearing, school district of residence personnel must
contact the Ohio department of education, office for exceptional children,
before the end of the next business day following receipt of the parent 's
request.
(ii) If a school district
of residence initiates an expedited due process
hearing under this rule, school district of residence personnel must contact
the Ohio department of education, office for exceptional children, on the day
the expedited due process hearing is requested. The school district
of residence shall provide the parents with
notification of the request for the hearing and procedural safeguards no later
than the end of the next business day .
(iii) An impartial hearing officer will be
appointed by the Ohio department of education, office for exceptional children,
before the end of the next business day from the day the school district of
residence informs the office for exceptional children.
(a) The impartial hearing officer shall meet
the qualifications set forth in paragraph (K)(10)(c) of this rule.
(b) The impartial hearing officer shall
contact both parties of the hearing.
(iv) The expedited due process hearing shall
be conducted in accordance with paragraphs (K)(12)
(K)(8) and
(K)(15)
(K)(14) of this rule, except that no extensions of
time shall be granted, and the hearing will occur within twenty school days of
the date the complaint requesting the hearing was filed. The hearing officer's
decision will be completed within ten days of the conclusion of the
hearing.
(v) The decision of the
hearing officer is final, unless a party to the expedited due process hearing
appeals the decision to the Ohio department of education, within forty-five
calendar days of the notification of the decision. In consideration of the
issues that are the basis of the expedited appeal, the appeal should be filed
as soon as possible.
(a) The state level
review officer will be appointed in accordance with paragraph
(K)(14)(b)
(K)(13)(b) of this rule;
(b) The state level review will be conducted
in accordance with paragraphs (K)(14)
(K)(13) and (K)(15)
(K)(14) of
this rule, except that no extensions of time shall be granted, and the written
decision shall be issued no later than thirty days from the date the Ohio
department of education receives the request.
(c) The final order of the state level review
officer may be appealed to the courts in accordance with paragraph
(K)(17)
(K)(16) of this rule.
When an appeal under paragraph (K)(22)
(K)(20)(c)
(K)(20)(g)
(a) General
A child who has not been determined to be eligible for
(K)(24)(b)
(b) Basis
of knowledge
A
(i) The parent of the child expressed concern
in writing to supervisory or administrative personnel of the appropriate
educational agency , or a teacher of the child, that the child is in need of
special education and related services ;
(ii) The parent of the child requested an
evaluation of the child pursuant to rule
3301-51-06 of the Administrative
Code; or
(iii) The teacher of the
child, or other personnel of the
school
district
educational agency
, expressed
specific concerns about a pattern of behavior demonstrated by the child
directly to the director of special education of the
school district
educational
agency
or to other supervisory personnel of the
school district
educational agency
.
(c) Exception
A
(K)(24)(b)
(i) The parent of the child:
(a) Has not allowed an evaluation of the
child pursuant to rule
3301-51-06 of the Administrative
Code; or
(b) Has refused services
under this chapter of the Administrative Code; or
(ii) The child has been evaluated in
accordance with rule
3301-51-06 of the Administrative
Code and determined to not be a child with a disability under this chapter.
(d) Conditions that
apply if no basis of knowledge
(i) If
a school district
an educational agency
does not have knowledge that a
child is a child with a disability (in accordance with paragraphs
(K)24(b)
(K)(23)(b) and (K)(24)(b)
(K)(23)(c) of this rule) prior to taking disciplinary
measures against the child, the child may be subjected to the disciplinary
measures applied to children without disabilities who engage in comparable
behaviors consistent with paragraph (K)(24)(d)(ii)
(K)(23)(d)(ii) of this rule.
(ii) If a request is made for an evaluation
of a child during the time period in which the child is subjected to
disciplinary measures under paragraph (K)(20)
(K)(19) ) of
this rule, the evaluation must be conducted in an expedited manner.
(iii) Until the evaluation is completed, the
child remains in the educational placement determined by school authorities,
which can include suspension or expulsion without educational
services.
(iv) If the child is
determined to be a child with a disability , taking into consideration
information from the evaluation conducted by the school district of residence
and information provided by the parents, the school district of residence must
provide special education and related services in accordance with this chapter
of the Administrative Code, including the requirements of paragraphs
(K)(20)
(K)(19) to (K)(26)
(K)(25) ) of this rule and Section 612(a)(1)(A) of
the IDEA .
Rule of construction. Nothing in this rule prohibits an agency
from reporting a crime committed by a
(a) For purposes of removals of a child with
a disability from the child's current educational placement under paragraphs
(K)(20)
(K)(19) to (K)(25)
(K)(24) of this rule, a change of placement
occurs if:
(i) The removal is for more than
ten consecutive school days; or
(ii) The child has been subjected to a series
of removals that constitute a pattern:
(a)
Because the series of removals total more than ten school days in a school
year;
(b) Because the child's
behavior is substantially similar to the child's behavior in previous incidents
that resulted in the series of removals; and
(c) Because of such additional factors as the
length of each removal, the total amount of time the child has been removed,
and the proximity of the removals to one another.
(b) The
school district
educational
agency
determines on a case-by-case basis whether a pattern of removals
constitutes a change of placement. This determination is subject to review
through due process and judicial proceedings.
(L) Availability of scholarship notification
(1) Each time a district completes an
evaluation for a child with a disability or undertakes the development, review
or revision of the child's IEP, the district shall notify the child's parent ,
by letter or electronic means, about both the "
autism scholarship program" (ASP), established by section
3310.41 of the Revised Code, and
the "Jon Peterson special needs scholarship
program" (JPSN), established by section
3310.52 of the Revised Code, in
accordance with division (C) of section
3323.052 of the Revised
Code.
(2) The notice shall include
the following:
(a) Information that the child
may be eligible for a scholarship under either the ASP
autism scholarship
program or the JPSN
Jon Peterson special needs scholarship program that
implements the child's IEP
individualized education program
and that is operated
by an alternative public provider or by a registered private provider;
and
(b) The telephone number of the
office of the department responsible for administering the scholarship programs
and the specific location of scholarship information on the department's
website.
(3) In the case of a preschool-aged
child, notice only of the "
Notes
Promulgated Under: 119.03
Statutory Authority: O.R.C. 3301.07(J), 3323.05
Rule Amplifies: O.R.C. 3323.04, 3323.05, 3323.051
Prior Effective Dates: 07/01/2002, 07/01/2008, 04/24/2010, 07/01/2014
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