Chapter 5: Procedural Safeguards

    3301-51-05

    5.1 Prior Written Notice - 3301-51-05(H)

     

    5.2 Procedural Safeguards Notice - 3301-51-05(I)

    5.3 Parental Consent for Evaluation- 3301-51-05(C)(1)

    5.4 Parental Consent for Services and Change in Placement - 3301-51-05(C)(2) and (4)

    5.5 Transfer of Parental Rights at Age of Majority - 3301-51-07(H)(3); 3301-51-05(D)(1) and (2)

    5.6 Surrogate Parents - 3301-51-05(E)

    5.7 Opportunity to Review Records and Participate in Meetings - 3301-51-05(F)

    5.8 Independent Educational Evaluation - 3301-51-05(G)

    5.9 Conflict Resolution - 3301-51-05(K)(1-26)

    5.11 Mediation - 3301-51-05(K)(3)

    5.12 State Complaint Procedures - 3301-51-05(K)(4)

    5.13 Due Process Complaints - 3301-51-05(K)(8)

    5.14 Resolution Process - 3301-51-05(K)(9)

    5.15 Impartial Due Process Hearing - 3301-51-05(K)(10)

    5.16 Expedited Due Process Hearing - 3301-51-05(K)(22)

    5.17 Appeal of Hearing Officer's Decision and State-Level Reviews - 3301-51-05(K)(14)

    5.18 Child's Status During Proceedings - 3301-51-05(K)(19)(a-d)

    5.19 Attorney's Fees - 3301-51-05(K)(18)

    5.1 Prior Written Notice

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services who report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20.U.S.C. 1416 (a)(3)(A))

    Intent:

    To notify the parents of a child with a suspected or confirmed disability, within a reasonable time, what specific action a school district (LEA) will initiate regarding identification, evaluation, educational placement or provision of FAPE. The notification also may inform parents of the district's refusal of action.

    Timelines:

    Notice shall be provided:

    Before the school district proposes or refuses to take specific actions

    Prior written notice must be given to the parents of a child with a suspected or confirmed disability within a reasonable time before the school district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

    A list of actions requiring prior written notice and when it must be provided is included on the chart at the beginning of the Procedural Safeguards section. See "When to Provide Prior Written Notice, Informed Consent, and Procedural Safeguards Notice (Whose IDEA Is This?)."

    REQUIREMENT

    3301-51-05
    (H) Prior notice by the school district; 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 child with a disability a reasonable time before the school district of residence:

    (a) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child; or
    (b) Refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.

    (J) Electronic mail
    A parent of a child with a disability may elect to receive notices required by this rule by an electronic mail communication, if the school district makes that option available.

    GUIDANCE

    Prior notice by the school district

    A list of actions requiring prior written notice is included on the chart at the beginning of the Procedural Safeguards section. See "When to Provide Prior Written Notice, Informed Consent, and Procedural Safeguards Notice (Whose IDEA Is This?)."

    The school district provides parents with a completed Prior Written Notice to Parents PR-01 form within a reasonable time before the school district proposes or refuses to take specific actions as described in the Requirements above.

    • A "reasonable time" is considered to be two to three weeks.

    Electronic mail

    The school district may make the Prior Written Notice to Parents PR-01 form, the procedural safeguards notice (Whose IDEA Is This?) and the notification of a due process complaint available by electronic communication if the parents choose to receive notices electronically. If so, the school district should document this request; for example, district personnel make a notation in the child’s file of the parents’ verbal request, including the date and place of the request (e.g., parent conference, hallway conversation, IEP meeting).

    Note: If the school district communicates with the parents by electronic mail, these communications become part of the child's education record.

    REQUIREMENT

    3301-51-05
    (H) Prior notice by the school district; content of notice
    (2) Content of notice
    The notice required under paragraph (H)(1) of this rule must include:

    (a) A description of the action proposed or refused by the school district;
    (b) An explanation of why the school district proposes or refuses to take the action;
    (c) A description of each evaluation procedure, assessment, record, or report the school district 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 proposal or refusal.

    GUIDANCE

    Content of notice

    The school district adopts the Prior Written Notice to Parents PR-01 form included in this guidance document.

    • This notification is intended to give parents a full explanation of what actions the school district is proposing or refusing to take and gives the parents an opportunity to agree or disagree with those actions.

    REQUIREMENT

    3301-51-05
    (H) Prior notice by the school district; content of notice
    (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 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.

    GUIDANCE

    Notice in understandable language

    If the school district has a parent mentor, it may request the parent mentor to assist in explaining the notice to the parents.

    If the parents' native language is not English, the school district checks the ODE Web site at http://education.ohio.gov, keyword search: prior written notice to determine if the Prior Written Notice PR-01 form has been translated into the language of the parents. If the form is available in the parents' native language, the school district downloads a copy of the form and arranges for the notice to be completed in the parents' language. If the Prior Written Notice PR-01 form has not been translated into the parents' native language, the school district arranges (if such translation services are available) to have the notice translated.

    If it is clearly not feasible to provide the parents with a written translation of the notice, the school district should make arrangements for a bilingual interpreter, who speaks the parents' language, to meet with the parents at a mutually agreed upon time and place to explain the notice.

    For assistance with translation (native language other than English) or recommendations of translators or oral interpreters, contact:

    • Ohio Department of Education
    Telephone: (614) 466-4109

    If the parents are visually impaired or blind, the school district provides the notice orally or in large print or Braille.

    For information on large print or Braille production, contact:

    • Center for Instructional Supports and Accessible Materials (CISAM)
    Ohio State School for the Blind
    Telephone: (614) 644-8465 or (614) 644-8423 (Braille Production Program)

    If the parents are hearing impaired or deaf, the school district arranges for interpreting services. The district should schedule a meeting at a mutually agreed upon time and place for the interpreter to explain the notice to the parents.

    The school district must document steps taken to ensure that the notice was explained and that the parents understand the content of the notice (e.g., record meeting date, time and place where interpreter services were provided) and include this documentation in the child’s education record.

    REQUIREMENT

    3301-51-05
    (H) Prior notice by the school district; content of notice
    (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.
    (c) The IEP shall serve as written notice unless the parent disagrees with the IEP. If the parent disagrees, written notice shall be provided prior to the implementation of the IEP.

    GUIDANCE

    In addition to the requirement for providing prior written notice to parents within a reasonable time before the school district proposes or refuses to take an action, the school district provides the Prior Written Notice to Parents PR-01 form in accordance with the timelines stated in the above requirement.

    IEP no longer serves as prior written notice to parents

    As of December 20, 2013, policy letter #2013-1 was issued requiring prior written notice after an IEP meeting and before implementation of the IEP per the requirements of IDEA. This requirement replaces the past practice of IEPs serving as prior written notice when the parties are in agreement with the IEP as written.

     

    5.2 Procedural Safeguard Notice

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. 20.U.S.C. 1416 (a)(3)(A))

    Intent:

    To provide parents with a comprehensive written explanation of the educational rights and responsibilities of the school district (LEA) for their child who is identified as or suspected of having a disability.

    Timelines:

    A copy of Whose IDEA Is This? (the procedural safeguards notice) must be given to the parents of a child with a disability only one time per school year, except that a copy also must be given to the parents:

    • Upon initial referral or parental request for evaluation;
    • Upon receipt of the first complaint made to the state in a school year;
    • Upon receipt of the first due process complaint;
    • Upon a change in placement for disciplinary action; and
    • Upon request by a parent.

    REQUIREMENT

    3301-51-05
    (I) Procedural safeguards notice
    (1) General
    A copy of the procedural safeguards available to the parents of a child with a disability must be given to the parents only one time a school year, except that a copy also must be given to the parents:

    (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) of this rule; and
    (d) Upon request by a parent.

    (J) Electronic mail
    A parent of a child with a disability may elect to receive notices required by this rule by an electronic mail communication, if the school district makes that option available.

    (I)(2) Internet web site
    A school district may place a current copy of the procedural safeguards notice on its internet web site if a web site exists, but the school district must still provide parents a printed copy of the procedural safeguards notice.

    GUIDANCE

    General

    A list of actions requiring the procedural safeguards notice is included on the chart at the beginning of the Procedural Safeguards section. See "When to Provide Prior Written Notice, Informed Consent, and Procedural Safeguards Notice (Whose IDEA Is This?)."

    The school district provides the parents with a copy of Whose IDEA Is This? (the procedural safeguards notice) at least once a year.

    • If a child transfers into the district from out-of-state, the district must provide the parents with a copy of Whose IDEA Is This?.
    • If a child transfers into the district from another district in the state, school district personnel provide a copy of Whose IDEA Is This? to the parents if the sending school district had not provided the parents a copy during the current school year.

    The district designates a time when this notice will be provided; for example, the district may provide a copy at the beginning of the school year or at the annual IEP meeting. A copy of this procedural safeguards notice does not need to be provided at the annual IEP meeting if the parents report they have received a copy for the current year and sign the IEP PR-07 form in the relevant section to document their receipt.

    Additionally, the school district must provide the parents with a copy of Whose IDEA Is This? at the following times:

    • Upon initial referral or parental request for evaluation;
    • Upon receipt of the first due process complaint in a school year;
    • Upon a change in placement for disciplinary action; and
    • Upon request by the parents.

    If the school district has provided the parents with a copy of Whose IDEA Is This? during the current school year and the parents indicate they do not need another copy when one of the above circumstances occurs, the school district documents this offer (date, time and situation when the offer was made) in the child’s education record.

    The Ohio Department of Education, Office for Exceptional Children provides the parents with a copy of Whose IDEA Is This? upon the parents' filing of the first state complaint within a school year.

    The parents may elect to receive the procedural safeguards notice as a printed hard copy provided by the district or as an attachment to an e-mail sent by the district if the district makes this option available to parents. Also, parents may express a preference to download the notice from the district’s Web site if a copy has been posted, but the district still must provide the parents with a printed copy of the notice.

    A copy of Whose IDEA Is This? may be provided to the parents at other times, such as when prior written notice is given, but this is not required.

    Electronic mail

    The school district may provide Whose IDEA Is This? via e-mail if the district makes this option available and if the parents choose to receive the notice electronically.

    If the parents choose to receive this notice electronically, the school district should document this request; for example, district personnel make a notation in the child’s file of the parent’s verbal request including the date of the request and the situation in which it was requested.

    Internet Web site

    Guidance provided by the U.S. Department of Education:

    The school district may post a copy of Whose IDEA Is This? on the district’s Web site for easy access by persons who have an Internet connection available. However, the district does not meet its obligation by simply directing a parent to its Web site. The school district must still provide the parents a printed copy of this procedural safeguards notice. If, however, the parents decline the offer of a printed copy and indicate a clear preference to obtain the notice electronically on their own from the district’s Web site, the district should document that the parent declined to accept a printed copy of the notice. Posting the procedural safeguards notice on the school district’s Web site is clearly optional and is for the convenience of the public. This Web posting does not replace the requirement in the IDEA to provide a printed copy. (Federal Register, August 14, 2006, pg. 46693).

    REQUIREMENT

    3301-51-05
    (I) Procedural safeguards notice
    (3) Contents of notice
    The procedural safeguards notice must include a full explanation of all the procedural safeguards available under rule 3301-51-02 of the Administrative Code, rule 3301-51-04 of the Administrative Code, and this rule including:

    (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.

    GUIDANCE

    Contents of notice

    The school district agrees to use the state required forms including Whose IDEA Is This? as the procedural safeguards notice.

    If the school district develops its own procedural safeguards notice or revises any of the forms required by ODE/OEC, the district must submit the forms to OEC for review and approval.

    REQUIREMENT

    3301-51-05
    (I) Procedural safeguards notice
    (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.

    (H)(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 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.

    GUIDANCE

    Notice in understandable language

    If the school district has a parent mentor, that person may be asked to assist in explaining the notice to the parents.

    If the parents’ native language is not English, the school district checks the ODE Web site at http://education.ohio.gov, keyword search: Whose IDEA, to determine if Whose IDEA Is This? has been translated into the language of the parents. If available in the parents' native language, the school district downloads a copy of Whose IDEA Is This? and provides it to the parents. If Whose IDEA Is This? has not been translated into the parents' native language, the school district arranges (if such translation services are available) to have this procedural safeguards notice translated.

    If it is clearly not feasible to provide the parent with a written translation of the notice, the school district should make arrangements for a bilingual interpreter, who speaks the parents’ language, to meet with the parents to explain the notice at a mutually agreed upon time and place.

    • For assistance with translation (native language – other than English) or recommendations of translators or oral interpreters,contact:
    Ohio Department of Education,
    Telephone: (614) 466-4109.

    If the parents are visually impaired or blind, the school district provides the parent with a copy of Whose IDEA Is This? in an accessible format such as print or Braille.

    • For information on large print or Braille production, contact:
    Center for Instructional Supports and Accessible Materials (CISAM)
    Ohio State School for the Blind
    Telephone: (614) 644-8465 or (614) 644-8423 (Braille Production Program)

    If the parents are hearing impaired or deaf, the school district arranges for interpreting services. The district should scheduled a meeting at a mutually agreed upon time and place for the interpreter to explain the notice to the parents.

    The school district documents steps taken to ensure that the notice was explained and that the parents understand the content of the notice. For example, district personnel record the meeting date, time and place where interpreter services were provided and include this documentation with the child's IEP.

    School district personnel include this documentation in the space provided on the Parent Consent for Evaluation PR-05 form when the notice was given for an initial evaluation or a reevaluation in which additional assessments are to be conducted.

     

    5.3 Parental Consent for Evaluation

    Procedural Safeguards - 5.3 Parental Consent for Evaluation

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services who report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20.U.S.C. 1416 (a)(3)(A))
    SPP 11:
    Percent of children with parental consent to evaluate, who were evaluated within 60 days (or state established timeline). (20.U.S.C. 1416 (a)(3)(B))

    Intent:

    To ensure that the parents of a child who is eligible to receive or continue to receive special education are informed of their rights in regard to providing or refusing consent for the evaluation or reevaluation of their child.

    Timelines:

    Within 30 days of receipt of a request

    A school district of residence will, within 30 days of receipt of a request for an evaluation from parents of a child or a public agency, either obtain parental consent for an initial evaluation or provide the parents prior written notice stating that the school district does not suspect a disability and will not be conducting an evaluation.

    Within 60 days of receiving parental consent

    The initial evaluation must be conducted within sixty days of receiving parental consent for the evaluation.

    If the school district is using a response to intervention (RtI) process, the district cannot use this process to reject a referral or delay the provision of a timely initial evaluation because a child has not participated in the RtI process (OSEP letter to State Directors of Special Education, January 21, 2011).

    If the school district has not implemented an RtI process and it receives a request for an evaluation from parents, the school district cannot begin the RtI process apart from the evaluation timeline. The district must complete the RtI process and the evaluation within the 90 day timeline from the date of the referral (30 days from date of referral and 60 days from parental consent) unless the district does not suspect a disability. If the district does not suspect a disability, it provides the parents with a prior written notice within 30 days of the request.

    Preschool Note
    School districts cannot require other agencies to use an RtI process when identifying preschoolers with disabilities.

    REQUIREMENT

    3301-51-01
    (B) Definitions
    (12) "Consent" means that:

    (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent’s native language, or other mode of communication;
    (b) The parent understands and agrees in writing to the carrying out of the activity for which the parent’s consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
    (i) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.
    (ii) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).

    3301-51-06
    (B) Initial evaluations
    (2) Request for initial evaluation
    Consistent with the consent requirements in rule 3301-51-05 of the Administrative Code, either a parent of a child or a public agency may initiate a request for an initial evaluation to determine if the child is a child with a disability.
    (3) A school district of residence will, within thirty days of receipt of a request for an evaluation from either a parent of a child or a public agency, either obtain parental consent for an initial evaluation or provide to the parents prior written notice stating that the school district does not suspect a disability and will not be conducting an evaluation.

    3301-51-05
    (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.

    3301-51-05
    (C) Parental consent
    (6) Other consent requirements
    (b) To meet the reasonable efforts requirement in paragraphs (C)(1)(c), (C)(1)(d)(i), (C)(2)(b), (C)(3)(b)(i) and (C)(4)(c)(i) of this rule, the school district must document its attempts to obtain parental consent using the procedures in rule 3301-51-07 of the Administrative Code.


    3301-51-07
    (J) Parent participation
    (4) Conducting an IEP team meeting without a parent in attendance A meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. In this case, the school district must keep a record of its attempts to arrange a mutually agreed on time and place, such as:

    (a) Detailed records of telephone calls made or attempted and the results of those calls;
    (b) Copies of correspondence sent to the parents and any responses received; and
    (c) Detailed records of visits made to the parent's home or place of employment and the results of those visits.

    GUIDANCE

    A list of actions requiring parental consent and when parental consent must be provided are included on the chart at the beginning of the Procedural Safeguards section. See "When to Provide Prior Written Notice, Informed Consent, and Procedural Safeguards Notice (Whose IDEA Is This?).

    Request for Initial Evaluation

    Parents' request

    If parents request an initial evaluation to determine if their child has a disability, the school district, within 30 days of receipt of either an oral or written request:

    • Contacts the parents and explains the referral process;
    • Provides the parents with a copy of procedural safeguards, Whose IDEA Is This?;
    • Provides the parents with the Prior Written Notice to Parents PR-01 form within 30 days, either agreeing or refusing to conduct an evaluation.
      • If the school district suspects the child has a disability and agrees to conduct an evaluation, it requests permission to evaluate the child and provides the parents with a Parent Consent for Evaluation PR-05 form.
      • If parents have joint custody of the child and both have educational decision-making authority, only one parent must consent before the initial evaluation may occur. (See below - "Parents with Joint Custody" - for additional guidance.)
      • If parents have joint custody of the child and the custody papers give one parent the authority to make educational decisions, the parent with that authority must provide the consent.
      • If the school district does not suspect a disability, it provides the parents with the Prior Written Notice to Parents PR-01 form stating it will not be conducting an evaluation and provides the information,including a description of each evaluation procedure, assessment, record or report,that was used to make that decision.

    See Child Find - 3.2 Responsibilities in Locating Children with Disabilities for clarification on date of referral.

    School district referral

    If the school district suspects the child has a disability and proposes to conduct an initial evaluation, the school district:

    • Contacts the parents and explains the referral process;
    • Develops an evaluation plan with the parents’ input;
    • Provides the parents with a copy of procedural safeguards, Whose IDEA Is This?;
    • Provides the parents with the Prior Written Notice to Parents PR-01 form stating that the school district is proposing to conduct an initial evaluation;
    • Requests permission to evaluate the child and provides the parents with a Parent Consent for Evaluation PR-05 form.
    The Parent Consent for Evaluation PR-05 and Prior Written Notice PR-01 forms can be provided at the same time as a copy of Whose IDEA Is This? (Federal Register, August 14, 2006, pg. 46691)

    The district should provide the parents with the name, school address, phone number and e-mail address of a contact person who is available to respond to any questions the parents may have regarding the proposed evaluation.

    The school district should attempt to contact parents who are not responding through various means such as:

    • Written correspondence sent via certified mail;
    • Phone calls;
    • Electronic communications, including but not limited to e-mail and password-protected parent pages; and
    • Visits to the home or parents’ places of business.

    School district personnel should document their attempts to contact the parents by keeping detailed records that include dates, times and results of their efforts and by placing the documentation with the child’s referral form.

    The school district proceeds with the evaluation once parental consent has been received; the evaluation team, which includes the parents, has developed an evaluation plan; and the parents have been provided prior written notice. The school district completes the initial evaluation within 60 days of receiving the parental consent.

    REQUIREMENT

    3301-51-05
    (C) Parental consent
    (1) Parental consent for initial evaluation (continued)
    (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 a judge to represent the child.

    GUIDANCE

    Parental consent for initial evaluation (continued)

    Date of Consent

    The 60-day timeline for the evaluation begins when the school district receives written parental consent. The date of consent is the date the district receives written parental consent to conduct the evaluation. If the date of receipt is different than the date the parents signed the Parent Consent for Evaluation PR-05 form, the district should document the date of receipt.

    Wards of the state

    The term "ward of the state" includes all foster children in Ohio as well as all children in the temporary or permanent custody of a public child-welfare agency.

    • If the child resides in a foster home, the foster parent is not considered to be the parent under Ohio law; however, the foster parent may serve as the surrogate parent if the foster parent meets the criteria for surrogate parents, including successfully completing the prescribed training, and is appointed by the superintendent of the child’s district of residence.

    The school district reviews the definition of "parent" as outlined in Operating Standards for Ohio Educational Agencies Serving Children with Disabilities, rule 3301-51-01(BB) (see Glossary), attempts to contact individuals who are qualified to act as the parent, and keeps detailed records of their attempts. If more than one party is qualified to act as the parent, those parties are contacted in the order found in the definition of "parent," unless there is a judicial decree or order identifying a specific person or persons to act as the child's parent or to make educational decisions on behalf of the child.

    If the school district identifies a person who can act as the parent for the child who is a ward of the state, that person must give consent prior to the initial evaluation.

    If the school district cannot locate a person who can act as the parent, the school district proceeds to appoint a surrogate parent following the guidance in Procedural Safeguards - 5.6 Surrogate Parents.

    IDEA and Ohio's rules (see above requirements in Rule 3301-51-05(C)(1)(d)) create an exception to the parental consent requirements for the initial evaluation when a child is a ward of the state and is not residing with his or her parent. This exception permits the school district to proceed with the child’s initial evaluation without first obtaining the usual parental consent and before appointing the surrogate, when one or more of the circumstances described above are met. Only in these circumstances listed in the above requirement may the school district proceed with the child’s initial evaluation without first obtaining parental consent.

    • Therefore, when one or more of the circumstances in Rule 3301-51-05(C)(1)(d) (quoted above) is met and a surrogate has not yet been appointed, the public agency need not postpone the child’s evaluation to await the appointment of a surrogate. This is appropriate because in most situations involving requests for initial evaluations a surrogate parent has not yet been appointed, and delaying an initial evaluation until after a surrogate is appointed and has given consent may not be in the best interests of the child. (Federal Register, August 14, 2006, pg. 46630).
    Note: This exception to parental consent for wards of the state does not apply to a reevaluation.

    If one or more of these circumstances described above are met and the school district proceeds with the child’s initial evaluation without first obtaining the usual parental consent, the school district still is obligated to ensure that the rights of a child who is a ward of the state are protected and to appoint a surrogate parent to act on behalf of the child.

    Divorced parents with joint custody

    If parents have joint custody of the child and both have educational decision-making authority, only one parent must consent before the initial evaluation may occur. If the parents disagree and are threatening legal action or revocation of consent, ODE/OEC recommends that the district:

    • Contact the judge that wrote the divorce decree;
    • Explain that the joint custody for educational decision making is interfering with the provision of services for the child; and
    • Seek the judge's assistance in resolving the parents' disagreement.

    ODE/OEC recommends these steps be taken when legal action or revocation of consent is being proposed, since disagreements between the parents could result in one parent providing informed consent to evaluate or serve the child and the other parent revoking consent. If a parent revokes consent, the district cannot take the parent to a due process hearing to obtain a ruling that services may be provided.

    REQUIREMENT

    3301-51-05
    (C) Parental consent
    (1) Parental consent for initial evaluation (continued)
    (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 Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) (including the mediation procedures or the due process procedures under this rule).

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

    GUIDANCE

    Parental consent for initial evaluation (continued)

    If unable to obtain parental consent

    If the school district is unable to obtain the parents' consent for an initial evaluation because the parents either explicitly refused to provide consent or failed to respond to a request, the school district may choose:

    • Not to pursue the initial evaluation of the child; or
    • To pursue the initial evaluation by requesting a due process hearing and by engaging in conflict resolution (e.g., resolution meeting and/or mediation) to convince the parents to provide their consent.
      • The district is not required to request a due process hearing or to engage in other forms of conflict resolution and does not violate its obligation for child find or evaluation if it declines to pursue the evaluation.
      • Refer to the following document for information on mediation:

    This document is available on the Ohio Department of Education Web site at http://education.ohio.gov, keyword search: mediation.

    If the school district decides to pursue the initial evaluation by requesting a due process hearing and by engaging in conflict resolution, it completes the Due Process Complaint and Request for a Due Process Hearing form posted on the ODE Web site at http://education.ohio.gov, keyword search: due process and follows the guidance provided under Procedural Safeguards - 5.13 Due Process Complaints.

    If the school district decides not to pursue the initial evaluation, it informs the parents of this decision by completing and sending the Prior Written Notice to Parents PR-01 form.

    If the parents of a child who is home schooled or whom they have placed in a private school at their own expense do not provide consent for the initial evaluation, or if the parents fail to respond to a request to provide consent, the district cannot request a due process hearing or request the parents to engage in a resolution session and/or mediation in order to obtain the parents' consent. (34 C.F.R. §300.300(d)(4))

    REQUIREMENT

    3301-51-05
    (C) Parental consent
    (4) Parental consent for reevaluation

    (a) Subject to paragraph (C)(3)(b) of this rule, each school district:
    (i) Must obtain informed parental consent, in accordance with paragraph (C)(1) of this rule, prior to conducting any reevaluation of a child with a disability.
    (ii) If the parent refuses to consent to the reevaluation, the school district of residence may, but is not required to, pursue the reevaluation by using the consent override procedures described in paragraph (C)(1)(e) of this rule.
    (iii) The school district of residence does not violate its obligation under rule 3301-51-03 of the Administrative Code for child find and under rule 3301-51-06 of the Administrative Code for reevaluations if it declines to pursue the reevaluations.
    (b) The informed parental consent described in paragraph (C)(3)(a) of this rule need not be obtained if the school district can demonstrate that:
    (i) It made reasonable efforts to obtain such consent; and
    (ii) The child's parent has failed to respond.

    GUIDANCE

    Parental consent for reevaluation

    Reevaluations may not occur more than once a year, unless the parents and school district agree otherwise; and

    Reevaluations must occur at least once every three years unless the parents and the school district agree that a reevaluation is unnecessary. See Evaluation - 6.5 Reevaluation for guidance on the reevaluation process.

    • A reevaluation is not required if the child's eligibility is terminated due to graduation from high school with a regular diploma or due to exceeding the age eligibility for a free appropriate public education (FAPE). (3301-51-06(F)(5)(b))

    The school district does not need to obtain consent for the review of existing data, which is part of the reevaluation process.

    If additional assessments are determined to be necessary for the reevaluation of a child with a disability, the school district must obtain parental consent and:

    • Develop an evaluation plan with the parents’ input;
    • Provide the parents with the Prior Written Notice to Parents PR-01 form;
    • Request permission to reevaluate the child and to provide the parents with a Parent Consent for Evaluation PR-05 form.
      The school district may provide these two forms to the parents at the same time it provides a copy of Whose IDEA Is This?
      The school district provides the Prior Written Notice to Parents PR-01 form electronically if the parents elect to receive notices in this manner and the district makes this option available to parents.

    The district should provide the parents with the name, phone number and e-mail address of a contact person who is available to respond to any questions the parents may have regarding the new assessments to be conducted.

    Once the school district receives parental consent for the reevaluation, the district conducts the identified assessments.

    If parents refuse consent for reevaluation

    If the parents explicitly refuse consent for a reevaluation of the child, the school district has four options:

    • To agree with the parents that a reevaluation is unnecessary;
    • To conduct a reevaluation by utilizing data and/or documentation that the district already possesses; that is, no new assessments are administered;
    • To pursue the reevaluation by requesting a due process hearing and by engaging in conflict resolution (e.g., resolution session and/or mediation)to convince the parents to provide their consent; or
    • The district can decide not to pursue having the child reevaluated.

    If the school district and the parents agree that the reevaluation is unnecessary, the three-year reevaluation need not be conducted. However, the school district must continue to provide FAPE to the child.

    If the parents failed to respond

    "Failed to respond" in this context is generally understood to mean that, in spite of a school district’s efforts to obtain consent for an evaluation, the parents have not indicated whether they consent to or refuse consent for the evaluation. (Federal Register, August 14, 2006, pg. 46632)

    The school district must make "reasonable efforts" to obtain consent from parents who are not responding through various means, such as:

    • Written correspondence;
    • Phone calls; and
    • Electronic communications, including but not limited to e-mail and password-protected parent pages; and
    • Visits to the home or parents’ places of business.

    School district personnel should document attempts to contact the parents by keeping detailed records that include dates, times and results of their efforts and place the documentation in the child's education records.

    The school district proceeds with the reevaluation.

    REQUIREMENT

    3301-51-05
    (C) Parental consent

    • (5)(c) Informed parental consent need not be obtained before:
      (iii) Reviewing existing data as part of an evaluation or reevaluation; or
      (iv) Administering a test or other evaluation that is given to all children unless, consent is required of parents of all children.

    GUIDANCE

    Parental consent not required

    Refer to Evaluation - 6.4 Planning and Conducting Evaluation for requirements and guidance related to reviewing data and administering a test or other evaluation given to all children.

     

    5.4 Parental Consent for Services and Change in Placement

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20.U.S.C. 1416 (a)(3)(A))

    Intent:

    To provide procedures school districts (LEAs) will follow to assure that parents understand their right to provide or refuse consent for the provision of special education services or for a change of placement.

    Timelines:

    Consent for the provision of services is obtained once an initial IEP has been developed. The initial IEP must be developed within whichever of the following time periods is the shortest:

    Within 30 calendar days - within 30 calendar days of completing the evaluation and determining that the child needs special education and related services;

    Within 90 calendar days - within 90 calendar days of receiving parental consent for an evaluation; or

    Within 120 calendar days - within 120 calendar days of receiving a request for an evaluation from a parent or school district.

    REQUIREMENT

    3301-51-01
    (B) Definitions
    (12) "Consent" means that:
    (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in the parent’s native language, or other mode of communication;
    (b) The parent understands and agrees in writing to the carrying out of the activity for which the parent’s consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

    (i) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time.
    (ii) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).

    3301-51-05
    (C) Parental consent
    (1)Parental consent for initial evaluation

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

    (2) Parental consent for services
    (a) A school district of residence that is responsible for making FAPE available to a child with a disability must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child.
    (b) The school district of residence must make reasonable efforts to obtain informed consent from the parent for the initial provision of special education and related services to the child.
    (c) If the parent of 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 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.

    (6) Other consent requirements

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

    3301-51-07
    (J) Parent participation
    (4) Conducting an IEP team meeting without a parent in participation
    A meeting may be conducted without a parent in attendance if the school district is unable to convince the parents that they should attend. In this case, the school district must keep a record of its attempts to arrange a mutually agreed on time and place, such as:

    (a) Detailed records of telephone calls made or attempted and the results of those calls;
    (b) Copies of correspondence sent to the parents and any responses received; and
    (c) Detailed records of visits made to the parent’s home or place of employment and the results of those visits.

    GUIDANCE

    A list of actions requiring parental consent and when it must be provided is included on the chart at the beginning of the Procedural Safeguards section. See: When to Provide Prior Written Notice, Informed Consent, and Procedural Safeguards Notice.

    Parental consent for services

    The school district makes "reasonable efforts" to contact parents to obtain consent for the initial provision of special education and related services.

    The school district should attempt to contact parents who are not responding through various means such as:

    • Written correspondence;
    • Phone calls;
    • Electronic mail communications, to include but not limited to e-mail and password-protected parent pages; and
    • Visits to the home or parents’ places of employment.

    School district personnel document their attempts to contact the parents by keeping detailed records that include dates, times and results of their efforts. This documentation is filed with the child’s IEP.

    The school district encourages parents to attend IEP meetings by pointing out the importance of the IEP for each child with a disability and by stressing the vital role that parents play in developing the IEP.

    The school district obtains signed parental consent for the initial provision of special education and related services on the IEP PR-07 form at the IEP meeting conducted in accordance with procedures provided in IEP - 7.4 Development of IEP.

    If parents have joint custody of the child, only one parent must consent before the initial provision of special education and related services may occur.

    If the parents disagree and are threatening legal action or revocation of consent, ODE/OEC recommends that the district:
    • Contact the judge that wrote the divorce decree;
    • Explain that the joint custody for educational decision making is interfering with the provision of services for the child; and
    • Seek the judge’s assistance in resolving the parents’ disagreement.
    ODE/OEC recommends these steps be taken when legal action or revocation of consent is being proposed since disagreements between the parents could result in one parent providing informed consent to evaluate or serve the child and the other parent revoking consent. If a parent revokes consent the district cannot take the parent to a due process hearing to obtain a ruling that services may be provided.

    The school district ensures that the IEP is developed and that parental consent is obtained for the initial provision of special education and related services by whichever of the following time periods is the shortest.

    • Within 30 calendar days of completing the evaluation and determining that the child needs special education and related services;

    This is in addition to the timelines for obtaining consent and completing the initial evaluation. The rules require that parental consent be obtained within 30 days of receiving a request for an evaluation and that the evaluation be conducted within 60 days from receiving the parental consent.
    • Within 90 calendar days of receiving parental consent for an evaluation;

    This timeline incorporates the requirements for conducting the initial evaluation (within 60 days of receiving parental consent) and developing the IEP (within 30 days of completing the evaluation).
    • Within 120 calendar days of receiving a request for an evaluation from the parents or school district.

    This timeline includes the requirements for obtaining consent, conducting the initial evaluation and developing the IEP.

    Fig XX IEP Timeline

     

    The school district should obtain signed parental consent through other methods if parents did not attend the IEP meeting or they participated through alternative means such as conference calls or video conferencing. Other methods could include:

    • Mailing the IEP to the parents for giving consent;
    • Making a home visit to obtain the parents’ consent; and
    • Visiting the parents’ workplaces to obtain their consent.

    Once signed parental consent is received, the school district implements the agreed upon services as specified in the IEP.

    The school district provides the initial special education and related services for which the parents have given consent as documented on the IEP.

    If the parents do not agree to all the services identified in the initial IEP, and so indicate on the IEP form, the school district provides the parents a Prior Written Notice to Parents PR-01 form documenting areas of disagreement and agreement. The district then provides the services that both the school district and the parents agree upon.

    In situations where the parents agree with the majority of services in their child’s initial IEP, but disagree with the provision of a particular service or services, such as physical therapy or occupational therapy, the district should work with the parents informally to achieve agreement. While the parents and the district are attempting to resolve their differences, the district should provide the service or services that are not in dispute.
    In situations where the parents disagree with the provision of a particular special education or related service, and the parents and district later agree that the child would be provided with FAPE if the child did not receive that service, the district could decide not to provide the service with which the parents disagree.
    If, however, the parents and the district disagree about whether the child would be provided with FAPE if the child did not receive a particular special education or related service with which the parents disagree, and the parents and the district cannot resolve their differences informally, the parents may follow conflict resolution procedures to pursue the issue of whether the service is not appropriate for the child.
    The parents may not revoke consent for part of an IEP. They must revoke consent for the entire IEP. See Revocation of Consent at the end of this section.(Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations, OSEP, June 2010, Excerpt from Response).

    Once the initial parental consent for special education and related services is given, the school district must obtain consent only for a change in placement, as defined in the requirements at the beginning of this section.

    The IEP team conducts an annual review of the IEP and revises it, as appropriate. The IEP team then proceeds to implement the IEP for the following year. The school is not required to obtain consent for additional IEPs as long as there is no change of placement.

    REQUIREMENT

    3301-51-05
    (C) Parental consent
    (2) Parental consent for services (continued)
    (c) If the parent of a 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 available FAPE to the child for the failure to provide the child with the special education and related services for which the school district of residence requests consent; and
    (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.

    3301-51-05
    (C) Parental consent for services
    (6) Other Consent Requirements

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

    GUIDANCE

    Parental consent for services (continued)

    If the parents failed to respond

    If the parents failed to respond to the school district’s request to provide consent for the initial provision of special education and related services, the school district should maintain a record of its attempts to contact the parents.

    • "Failed to respond," in this context, is generally understood to mean that, in spite of the school district’s efforts to obtain consent, the parents have not indicated whether they consent to or refuse consent for special education and related services.

    If the parents explicitly refuse consent for the initial provision of special education and related services, as evidenced by their signatures on the IEP indicating that consent is not given, the school district maintains a copy of the signed IEP in the child’s education record that shows the district offered a free appropriate public education (FAPE) and the parents refused.

    If the parents fail to respond or refuse consent for initial special education and related services, the school district may not use the mediation procedures set forth in the Operating Standards for Ohio Educational Agencies Serving Children with Disabilities or request a due process hearing to obtain agreement or a ruling that the services may be provided to the child.

    The school district provides the parents with prior written notice and continues to provide the child with appropriate interventions in the regular education environment. The school district provides this notice within 30 days of its attempts to obtain written consent have been unsuccessful.

    REQUIREMENT

    3301-51-05
    (C) Parental consent
    (5) Parental consent for change in 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.

    3301-51-09
    (C) Continuum of alternative placements
    (1) Each school district must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

    (2) The continuum required in paragraph (C)(1) of this rule must:

    (a) Include the alternative placements listed in the definition of special education under rule 3301-51-01 of the Administrative Code (instruction in regular classes, special schools, home instruction, and instruction in hospitals and institutions); and
    (b) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

    3301-51-11 Preschool special education requirements
    (F) Center-based and itinerant teacher services
    A continuum of service delivery options that includes the options of center-based or itinerant teacher services shall be considered when determining the least restrictive environment.
    (5) A "change of placement" is defined as a change in the service delivery (center-based or itinerant teacher).

    GUIDANCE

    Change of Placement

    A "change of placement" means a change from one option on the continuum of alternative placements to another. (3301-51-05 (C)(5). A change in location, while usually not a change of placement, may constitute a change of placement if the change in location substantially alters the child's educational program.

    Questions to ask when determining whether or not a change of placement is occurring:

    • Can the child's current IEP be implemented exactly as it is written?
    • Is the child being educated with nondisabled peers to the same extent as in the current placement?
    • Will the child have the same opportunities to participate in extracurricular and nonacademic services?
    • Is the new location the same option on the continuum of alternative placements?
    • Is the same methodology being used in the classroom?
    • Are there the same number of aides available in the classroom and any one-on-one aides as required by the child's IEP?
    • Is access to technology and equipment the same?

    If the answer to these questions is "yes," you most likely do not have a change in placement. If the child's IEP is being revised concurrently with a change of location, this may be a change in placement.

    (OSEP letters to Joseph Fisher, April 18, 1994 and Charlene Green, August 15, 1995)

    Note: Some of these questions will not apply to preschool.

    Parental consent for change in placement

    If the school district is proposing a change in placement for a child for reasons other than discipline, the school district:

    • Obtains written parental consent on the IEP form at the IEP meeting that is conducted in accordance with procedures provided in IEP - 7.4 Development of IEP.
      • If parents have joint custody of the child, only one parent must consent before a change in placement may occur. If the custody papers give one parent the authority to make educational decisions, the parent with that authority must provide the consent.
      • A "change in placement," as defined in the requirements above, means a change from one option on the continuum of alternative placements to another.
      • The following situations do not constitute a change in placement, and therefore, do not require parental consent:
        • Moving a child from one building to another; or
        • Changing the percentage of time a child spends in a particular setting (e.g., increasing the time spent in a resource room from 60 to 120 minutes).
        • Changes in related services (i.e., where provided and time spent in related services).


    The school district obtains signed parental consent through other methods if parents did not attend the IEP meeting or if they participated through alternative means such as conference calls or video conferencing. Other methods may include:

    • Mailing the IEP to the parents for their signed consent;
    • Making a home visit to obtain the parents' consent; or
    • Visiting the parents' workplaces to obtain the their consent.

    Once signed parental consent is received by the school district for the change in placement, the school district implements the agreed-upon services as specified in the IEP. The district may not change the child's placement until the parents consent to the proposed change in placement.

    REQUIREMENT

    3301-51-05
    (C) Parental consent
    (5) Parental consent for a change in placement (continued)

    (c) Informed parental consent need not be obtained before:
    (i) A change of placement if the school district of residence can demonstrate that it has made reasonable efforts, as described in rule 3301-51-07 of the Administrative Code, to obtain consent and the child’s parent has failed to respond.
    (ii) A change of placement of a child with a disability that is the result of a disciplinary action taken in accordance with paragraph (K)(20) of this rule.

    (K) Conflict resolution
    (26) Change of placement because of disciplinary removals
    (a) For purposes of removals of a child with a disability from the child’s current educational placement under paragraphs (K)(20) to (K)(25) 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 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.

    GUIDANCE

    Parental consent for a change in placement (continued)

    The school district must obtain parental consent before making a change in placement. If parental consent cannot be obtained, the school district may file a due process complaint requesting a due process hearing or request mediation in order to obtain agreement or a ruling that the placement may be changed.

    In the case of disciplinary actions, the school district cannot change the child's placement without parental consent if the child's behavior is determined to be a manifestation of the child's disability. (See Discipline 8.3 Code of Conduct Violations: Removals of More than 10 Cumulative School Days - Change of Placement)

    REQUIREMENT

    3301-51-05
    (C) Parental 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 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 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.

    GUIDANCE

    Revocation of consent

    Note: Regulations governing IDEA that address "consent" and "revocation of consent" have been amended. The amended requirements are reflected in the following guidance.

    The parents may revoke consent for and remove the child from all special education and related services. The revocation of consent for the continued provision of special education and related services must be in writing.

    Actions the school district takes when consent is revoked:

    • Continue to implement the child's IEP as written, until the district provides the parents with prior written notice.
    • Send Prior Written Notice to Parents PR-01 form that includes the following:
      • A summary of the educational needs of the child;
      • A summary of all of the supports and services the child will no longer receive; and
      • A statement that none of the rights and protections provided to children with disabilities will be provided to the child once the child is exited from special education; and
    • Once prior written notice is provided to the parents, the district will no longer implement the child’s IEP and will treat that child as any child without a disability.

    The school district does not need to provide Whose IDEA Is This? when a parent revokes consent.

    Note: The parents may not revoke consent for only a part of an IEP. The parents must revoke consent for the entire IEP. If the parents disagree with any part of an IEP, they must follow conflict resolution procedures; i.e., administrative review, mediation, IEP facilitation, complaint or due process hearing.

    Actions the school district will NOT take when consent is revoked:

    • A three-year reevaluation;
    • An annual IEP meeting; and
    • Discipline procedures as outlined in IDEA.

    Note: The school district will treat the child whose parents have revoked consent just as they would treat any child without a disability and will not be liable for providing the child a free appropriate public education FAPE), per the new federal regulation.

    The district will continue to conduct child find activities on a regular basis and will include all children whose parents have revoked consent for special education and related services. This means the district will continue to periodically ask the parents if they would like the district to evaluate their child for a suspected disability. This would be considered an initial referral. If the parents agree to the evaluation and the child is found eligible for services, the district will create an IEP and serve the child.

    The school district is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent.

     

    5.5 Transfer of Parental Rights at Age of Majority

    State Performance Plan (SPP):

    (See Overview in the Introduction for information on the SPP.)

    Intent:

    To provide guidance to school districts (LEAs) regarding the transfer of parental rights to children with disabilities at the age of majority (18 years of age) in accordance with the requirements under IDEA.

    Timelines:

    Not later than one year before the child reaches 18 years of age

    Beginning not later than one year before the child reaches 18 years of age, the school district must inform the child that the parental rights under Part B of IDEA will transfer to the child at age 18.

    When the child reaches 18 years of age

    When a child with a disability (except for a child with a disability who has been determined to be incompetent under Ohio law) reaches 18 years of age, the school district of residence must notify both the child and the parents of the transfer of rights.

    REQUIREMENT

    3301-51-07
    (H) Definition of individualized education program
    (3) Transfer of rights at age of majority
    Beginning not later than one year before the child reaches eighteen years of age, which is the age of majority under Ohio law, the IEP must include a statement that the child has been informed of the child’s rights under Part B of the IDEA that will transfer to the child on reaching the age of majority, as specified in rule 3301-51-05 of the Administrative Code.

    GUIDANCE

    Transfer of parental rights at age of majority

    The school district informs the parents and the child on or before the child’s 17th birthday of the rights that will transfer to the child at age 18. The district also must provide the child with a copy of Whose Idea Is This? This generally occurs during the annual IEP meeting; however, a specific meeting may be scheduled to inform the child of the transfer of rights. A statement that the child has received notice of the procedural safeguards at least one year before his or her 18th birthday is included in the IEP PR-07 form and should be signed and dated by the child. (See IEP - 7.5 Special Factors and Considerations.) District personnel should review Whose IDEA Is This? with the child, explaining the rights that will transfer to the child and pointing out that the child will be responsible for making decisions about his or her own special education and related services.

    Additionally, district personnel explain that parents will continue receiving notices required under IDEA; these are notice of IEP meetings, prior written notice, the procedural safeguards notice, and notice of any due process complaints against the child.

    The notice of meetings parents receive is not an invitation to the meetings; however, the child or the school district may invite the parents to participate in IEP meetings as "individuals with knowledge or special expertise regarding the child" (See IEP - 7.2 Identification of IEP Team Members and their Roles). (OSEP Policy Letter to Rodney J. Bieker, Esq., July 20, 2000.).

    REQUIREMENT

    3301-51-05
    (D) Transfer of parental rights at age of majority
    (1) When a child with a disability reaches the age of majority under Ohio law (eighteen years of age) that applies to all children (except for a child with a disability who has been determined to be incompetent under Ohio law):

    (a) The school district of residence must provide the notice required by this rule to both the child and the parents;
    (b) All rights accorded to parents under Part B of the IDEA and Chapter 3323. of the Revised Code transfer to the child; and
    (c) All rights accorded to parents under Part B of the IDEA and Chapter 3323. of the Revised Code transfer to children who are incarcerated in an adult or juvenile, state or local correctional institution.

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

    GUIDANCE

    If a child who has reached the age of majority (age 18) prefers not to exercise his or her educational rights, the child may request that a surrogate parent be appointed to represent him or her in all matters regarding the identification, evaluation, educational placement and the provision of a free appropriate public education (FAPE). (See Procedural Safeguards - 5.6 Surrogate Parents)

    If the school district receives notice that the child has been determined to be incompetent under Ohio law, no rights transfer to the child at age 18.

     

    5.6 Surrogate Parents

    General

    If the child does not have a biological or adoptive parent, the school district reviews the definition of "parent" to determine whether a person can be identified who is acting as a parent or serving in the parental role.

    "Parent" means:

    • A biological or adoptive parent of a child, but not a foster parent of a child;
    • A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the state if the child is a ward of the state);
    • An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or
    • A surrogate parent who has been appointed in accordance with the procedural safeguards rule;
    • Except for a person identified through a judicial decree or order to act as the parent, the biological or adoptive parent, when attempting to act as the parent and when more than one party is qualified to act as a parent, must be presumed to be the parent for purposes of Operating Standards for Ohio Educational Agencies Serving Children with Disabilities, unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.
    • If a judicial decree or order identifies a specific person or persons to act as the parent of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the parent for purposes of the Operating Standards for Ohio Educational Agencies Serving Children with Disabilities.
    • If more than one party is qualified to act as the parent, the parties that may be parents are taken in the order found in the definition, unless there is a judicial decree or order identifying a specific person or persons to act as the parent of the child or to make educational decisions on behalf of the child.

    For example, in the definition a "guardian generally authorized to act as the child’s parent" precedes a "grandparent with whom the child lives." Therefore, the school district would consider the "guardian" to be the "parent" to represent the child with a disability.
     

    Ward of the state

    "Ward of the state" means a child who, as determined by the state where the child resides, is:

    • A foster child;
    • A ward of the state; or
    • In the custody of a public child welfare agency.
       

    If a child is a ward of the state, the district must consider whether it needs to appoint a surrogate parent, but is not automatically required to appoint a surrogate parent. The district must first consult any judicial decree and follow the decree. If the decree identifies a specific person to act as a parent of the child or to make educational decisions on behalf of the child, than that person shall be considered to be the parent.
     

    If there is a specific person who meets the definition of parent, (see above) other than a parent from whom custody is being removed by court order, the district can consider that person as the parent who can make educational decisions for the child.

    If the court is removing a child from the custody of a parent, the district need not presume that that parent retains authority to make educational decisions for the child, if the decree is silent on this issue.
     

    If a child will be placed in foster care, a surrogate parent will probably need to be appointed. If the child resides in a foster home, the foster parent is not considered to be the parent under Ohio law; however, the foster parent may serve as the surrogate parent if the foster parent meets the criteria for surrogate parents, including successfully completing the prescribed training, and is appointed by the superintendent of the district of residence.

    Neither a public nor private child welfare worker meets the definition of a parent and cannot serve as a surrogate parent

    Unaccompanied homeless youth

    If the child is an unaccompanied homeless youth, the school district may appoint an individual to serve as a temporary surrogate who is a staff member at an emergency shelter, transitional shelter, independent living program or street outreach program. If a staff member from one of these agencies is also employed by the Ohio Department of Education (ODE), the school district or any other agency involved in the education or care of the child, that individual may still be appointed as the child's temporary surrogate parent, until an individual who meets all the requirements for a surrogate parent can be appointed. However, the school district must ensure that the individual appointed as a temporary surrogate meets the other three criteria:

    • Has no personal or professional interest that conflicts with the interests of the child the surrogate parent represents;
    • Has knowledge and skills that ensure adequate representation of the child; and
    • Has successfully completed the training prescribed by the ODE before acting on behalf of the child.

    Appointment of surrogate by a judge

    If the court has appointed a guardian ad litem, the guardian ad litem is not considered to be the parent; however, the guardian ad litem may serve as the surrogate parent if he or she meets the criteria for surrogate parents. That person must successfully complete the prescribed training and be appointed by the superintendent of the district of residence or by a judge overseeing the child’s case.

    The school district should establish a procedure with the local courts to notify the school when a surrogate parent has been appointed by a judge. If a judge has appointed a surrogate parent for a child who is a ward of the state, the school district, upon request of the judge, confirms that the surrogate appointed meets the requirements. If the individual appointed by the judge has not successfully completed surrogate parent training offered by the ODE, the school district should contact the State Support Team and arrange for a training session.

    Child who has reached age of majority (age 18)

    If a child with disabilities (except for a child with a disability who has been determined to be incompetent under Ohio law) reaches the age of majority (age 18) and requests a surrogate parent, the school district of residence proceeds with appointing a surrogate parent to represent the child. This includes requests from children who are incarcerated in an adult or juvenile state or local correctional institution.

    The school district may not assign a surrogate solely because the parent or child to whom rights have been transferred is uncooperative or unresponsive to special education matters. Neither is a parent’s lack of expertise in special education issues or lack of fluency in English a basis for assigning a surrogate parent.

    REQUIREMENT

    3301-51-05
    (E) Surrogate parents
    (2) Duties of the school district
    The duties of a school district of residence under paragraph (E)(1) of this rule include the assignment of an individual to act as a surrogate for the parents. This must include a method:

    (a) For determining whether a child needs a surrogate parent; and
    (b) For assigning a surrogate parent to the child.

    GUIDANCE

     

    Duties of the school district

    If a school district serving a child with a disability believes the child may need a surrogate parent, the district should contact the child's school district of residence (see Glossary for definition) to determine whether a person can be identified who is acting as a parent.

    The school district of residence maintains the ultimate responsibility for the appointment of a surrogate parent. However, the school district of residence may request the school district that the child attends to assist it in determining whether a person can be identified who is acting as a parent, and if no one can be identified as a parent, to assist the district of residence in locating and appointing a surrogate parent.

    Upon appointing a surrogate parent, the school district of residence is responsible for immediately requesting that the surrogate be trained by the State Support Team.

    If the surrogate parent is located in the child's district of service rather than the child's district of residence and the district of service is located in a different State Support Team region than the district of residence, the State Support Team where the surrogate is located may provide the training.

    Method for determining need

    The school district attempts to locate the parents of the child with a suspected or identified disability when the district does not receive their written permission for any action requiring parental participation or does not receive consent for evaluation or special education and related services.

    Attempts to locate the parents may include:

    • phone calls;
    • letters;
    • certified letters with return receipts;
    • visits to the child’s home; and
    • interviews with relatives and other individuals who may know the whereabouts of the child’s parents.

    Depending on a child's specific situation, the school district may collaborate with other individuals and organizations, such as child welfare agencies, juvenile justice personnel, county boards of MR/DD and homeless liaisons, to determine the need for a surrogate parent. However, the school district must ensure the confidentiality of a child's personally identifiable data, information and records collected or maintained by the district (Federal Register, August 14, 2006, pg. 46711).

    The school district should document each attempt to locate the parents of a child with a suspected or identified disability and include the documentation in the child's education record.

    REQUIREMENT

    3301-51-05
    (E) Surrogate parents
    (4) Criteria for selection of surrogate parents

    (a) A surrogate parent shall be assigned as soon as possible but no later than thirty days of the date that it is determined that the child is in need of the surrogate.
    (b) The school district of residence maintains the ultimate responsibility for the assignment of a surrogate parent. If requested by the school district of residence and mutually agreed upon, the school district of attendance, county board of mental retardation and developmental disabilities (county board of MR/DD), or other educational agency may appoint the surrogate parent.
    (c) The school district of residence must ensure that a person selected as a surrogate parent:
    (i) Is not an employee of the Ohio Department of Education, the school district, or any other agency that is involved in the education or care of the child;
    (ii) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents;
    (iii) Has knowledge and skills that ensure adequate representation of the child; and
    (iv) Has successfully completed the training prescribed by the Ohio Department of Education prior to acting on behalf of the child.

    (5) Non-employee requirement: compensation

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

    GUIDANCE

    Appointment of Surrogate by School District

    The school district of residence must utilize all information available to determine whether the child needs a surrogate. If review of this information indicates the child needs a surrogate parent, the school district appoints a surrogate parent as soon as possible, but no later than 30 days of the date the need was determined. The appointment of a surrogate parent does not require Board of Education action.

    If the child is attending another school district or a program provided by a county board of MR/DD or other educational agency, the school district of residence may ask that district or agency to appoint the surrogate parent.

    The school district should confirm this appointment through a written notice that includes the term of the surrogate parent's appointment. The school district should send copies of this notice, to the extent allowed by the law, to the child’s case worker and any other professionals who are involved with the child, and should record this appointment in the child’s education record.

    If the surrogate parent is appointed by the child’s school district of attendance or another agency providing the child’s special education, the school district of residence should request that it be provided a copy of the notification of appointment.

    Recruitment

    The school district should recruit and train individuals from the community to serve as surrogate parents. Interested and otherwise qualified individuals should be invited to attend a training session conducted by the State Support Team. Sources for individuals who might serve as surrogate parents may include:

    • PTA groups;
    • Parent advisory boards at local schools;
    • Local chapters of various associations for children; and
    • Local civic organizations and service clubs.

    The school district should maintain a list of individuals who have successfully completed the surrogate parent training. This list should include each person’s current and previous employment; experience with children with disabilities; education or training related to children with disabilities; possible conflicts of interest; and other relevant information. Examples of possible conflicts of interest include:

    • The person might benefit personally, professionally or financially from decisions regarding the child;
    • The person may be required to make decisions regarding the child that might affect policy in which the individual has a personal, professional or financial interest; or
    • The person in not able to faithfully represent the child because of an institutional bias or interest.

    Criteria for selecting surrogate parents

    The school district of residence appoints a surrogate parent who:

    • Is not an employee of the ODE, the school district, or any other agency that is involved in the education or care of the child;
    • Is not an employee of any other school district;
    • Has no personal or professional interest that conflicts with the child's interests;
    • Has knowledge and skills that ensure adequate representation of the child; and
    • Has, before acting on behalf of the child, successfully completed the training prescribed by the ODE.

    The school district should take the following factors into consideration when matching a child with a surrogate parent:

    • Cultural similarities or familiarity with the child’s culture;
    • Language compatibility; and
    • Prior involvement with the child.

    The school district should apply its policies for volunteers (e.g., requiring personal references or background checks) to the appointment of a surrogate parent, as appropriate. A person who qualifies to be a surrogate parent and is paid by the district in that capacity does not become an employee of the school district.

    REQUIREMENT

    3301-51-05
    (E) Surrogate parents
    (10) Surrogate parent responsibilities
    The surrogate parent may represent the child in all matters relating to:

    (a) The identification, evaluation, and educational placement of the child; and
    (b) The provision of FAPE to the child.

    (6) Civil damages

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

    GUIDANCE

    The school district gives the surrogate parent the same cooperation it gives to a natural parent in matters regarding the provision of special education to the child.

    Case load

    The school district decides the number of children a surrogate parent may represent. This decision takes into consideration the surrogate parent’s interests, abilities and availability.

    Term of appointment

    The school district is responsible for monitoring each appointed surrogate parent. The school district should review the appointment of surrogate parents annually to ensure that:

    • The rights of the child are protected;
    • The surrogate parent continues to meet the eligibility requirements; and
    • The surrogate parent actively participates in the special education decision-making process.

    The school district determines the surrogate parent’s term of appointment. Surrogate parents should be appointed on an annual basis and reappointed if the child being represented continues to need a surrogate. The district notifies the surrogate parent of the reappointment through a written notice and records the reappointment in the child’s educational record.

    The school district may terminate the appointment of the surrogate parent (except for a surrogate appointed by the court) before the expiration date of the agreed-upon period. There are several circumstances under which the school district may choose to discontinue an assignment:

    • The child reaches the age of majority (age 18) and is not requesting a surrogate parent after his or her 18thbirthday;
    • The child moves to another district;
    • The child is no longer eligible for or in need of special education, except when the termination of the special education is being contested;
    • The natural or adoptive parent, or someone else who is qualified to serve as the parent, has been identified or located;
    • The surrogate parent has a conflict of interest not previously identified (if a conflict of interest arises after the assignment of a surrogate, the authority that made the assignment shall terminate it and assign another surrogate [ORC 3323.051]);
    • The surrogate parent is not involved in representing the child because the surrogate parent is not attending meetings or not responding to school district correspondence regarding the child; or
    • The appointed surrogate is no longer eligible or willing to serve.

    The school district informs the surrogate parent of his or her termination and the reason for the termination through a written notification.

    Public agencies have a responsibility to ensure that a surrogate parent is carrying out his or her responsibilities, so there are circumstances when removal may be appropriate. A mere disagreement with the decisions of a surrogate parent about appropriate services or placements for the child, however, generally would not justify a removal, since the role of the surrogate parent is to represent the interests of the child, which may not be the same as the interests of the public agency (Federal Register, August 14, 2006, pg. 46712).
     

    Compensation

    The school district may, but is not required to, compensate the surrogate parent by reimbursing expenses and paying an hourly or per diem rate. A person who is otherwise qualified to be a surrogate parent is not an employee of the school district solely because the person is paid by the school district to serve as a surrogate parent.

    Liability

    Under Ohio’s laws, the surrogate parent and the authority that assigned the surrogate parent are protected from liability in civil damages for acts of the surrogate parent, unless such acts constitute willful or wanton misconduct. However, if the school district has specific questions regarding the surrogate parent and liability, the district should forward them to its legal counsel.

     

    5.7 Opportunity to Review Records and Participate in Meetings

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. 20.U.S.C. 1416 (a)(3)(A))

    Intent:

    To ensure that information regarding a child with a disability is available to the child's parents and that the parents are involved in the educational decision-making process for their child.

    Timelines:

    Opportunity to examine records

    No more than 45 calendar days after a request

    The school district must comply with a request to review records without unnecessary delay, and in no case more than 45 calendar days after the request has been made.

    If requested, before meetings

    If requested, education records must be provided before any meeting regarding an IEP, a hearing or a resolution session.

    Opportunity to participate in meetings

    Early enough

    Notify parents early enough to ensure they have an opportunity to participate in meetings with respect to the identification, evaluation, and educational placement of the child and the provision of a free appropriate public education (FAPE) to the child.

    REQUIREMENT

    3301-51-05
    (F) Opportunity to examine records; parent participation in meetings
    (1) Opportunity to examine records
    The parents of a child with a disability must be afforded, in accordance with the procedures of rule 3301-51-04 of the Administrative Code, an opportunity to inspect and review all education records with respect to:

    (a) The identification, evaluation, and educational placement of the child; and
    (b) The provision of FAPE to the child.

    GUIDANCE

    Opportunity to examine records

    When the school district receives a request from parents to review their child's educational records, district personnel give the parents an opportunity to meet and review the records, following the guidance included in Confidentiality - 4.3 Access Rights.

    Requests for evaluation team reports

    If parents make a records request for the most current evaluation team report (ETR) before an IEP meeting, the district must provide access to the ETR before the IEP meeting. If the ETR has not been developed, the school district must provide the parents access to any test answer sheets, evaluations and other materials that identify the child by name or by any other personal identifier that will be used to determine whether a child qualifies for special education services or continues to be eligible for services.

    When the district provides access to the parents, a person knowledgeable about the information being reviewed must be available to respond to parents' request for an explanation and interpretation of the records.

    Test protocols or question booklets that are separate from the sheet on which a child records answers and that are not personally identifiable to the child are not considered "education records" (Letter to Mathews, September 13, 2005. U.S. Department of Education, Family Policy Compliance Office). However, test protocols that are personally identifiable are considered "education records," and school districts are required to provide parents access to these records. School districts are not required to provide copies of these test protocols to parents.

    If the parents request a copy of the ETR, the district may respond that there is no ETR, if the report is not created before the meeting. In many instances, the ETR is created at the ETR meeting, with each person who has been involved in the evaluation presenting his or her information to be included in the ETR.

    If the parents want time to consider the results of the evaluation before agreeing to proposals made by the school district, they can state that they do not want the IEP meeting to be held at the same time as the ETR meeting. The scheduling of the IEP meeting after the ETR meeting gives the parents the opportunity to attend the ETR meeting, receive copies of the information presented by school personnel, and have time to review that information before the IEP meeting.

    NOTE: This information does not, and is not intended to, provide legal advice or legal interpretations or instructions on how to handle a specific situation. School districts should consult with their attorneys regarding appropriate action in a particular situation, or to obtain legal advice or legal interpretations.

    REQUIREMENT

    3301-51-05
    (F) Opportunity to examine records; parent participation in meetings
    (2) Parent participation in meetings

    (a) The parents of a child with a disability must be afforded an opportunity to participate in meetings with respect to:
    (i) The identification, evaluation, and educational placement of the child; and
    (ii) The provision of FAPE to the child.
    (b) Each school district must provide notice consistent with the parent participation requirements of rule 3301-51-07 of the Administrative Code to ensure that parents of children with disabilities have the opportunity to participate in meetings described in paragraph (F)(2)(a) of this rule.
    (c) A meeting does not include informal or unscheduled conversations involving school district 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 personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

    GUIDANCE

    Parental participation in meetings

    The school district provides parents with a Parent Invitation to Meeting PR-02 form before any meeting where the district will be discussing the child's identification, evaluation, educational placement and provision of special education and related services.

    The Operating Standards require a school district to notify parents of actions it is taking. These notifications must contain certain statements and must be provided to the parents before the district takes any action. Not all these notifications must be in writing.
    Refer to Prior Written Notice, Informed Consent and Procedural Safeguards Notice for a list of specific actions and the types of notice(s) required.

    The district notifies parents early enough to ensure they have an opportunity to participate in meetings regarding their child.

    Parents are required to be members of:

    • The group that determines whether their child has a disability;
    • The IEP team for their child; and
    • Any group that makes educational placement decisions for the child.

    The above requirements clarify what is "not a meeting":

    • Informal or unscheduled conversations involving school district personnel;
    • Conversations on issues such as teaching methodology, lesson plans or coordination of service provision; and
    • Preparatory activities that school personnel engage in to develop a proposal or response to proposal made by the parents that will be discussed at a later meeting.

    The requirements for notice and the opportunity for parent participation do not apply in these situations.

    REQUIREMENT

    3301-51-05
    (F) Opportunity to examine records; parent participation in meetings
    (3) Parent involvement in placement decisions

    (a) Each school district must ensure that a parent of a 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 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 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 is unable to obtain the parent’s participation in the decision. In this case, the school district must have a record of its attempt to ensure their involvement.

    GUIDANCE

    Parental involvement in placement decisions

    Before an IEP meeting regarding the educational placement of a child with a disability, the school district provides parents with A Parent Invitation PR-02 form.

    The school district makes every effort to convince parents to attend an IEP meeting and attempts to schedule a mutually-agreed-upon time and place for a meeting with the parents, through various means such as:

    • Phone calls;
    • Electronic communications including, but not limited to, e-mail or password protected parent pages;
    • Written correspondence;
    • Personal contacts; for example, parent-teacher conferences; and
    • Visits to parents' homes or places of employment.

    The school district employs a variety of methods to ensure parental participation, such as:

    • Individual phone calls;
    • Conference calls;
    • Video conferencing; or
    • Home visits.

    The school district documents attempts to obtain the parents' participation by maintaining detailed records that include dates, times and results of their efforts. The documentation is filed in the child’s education record. Documentation may include:

    • Phone logs;
    • Copies of written correspondence, including electronic communications; and
    • Dates of visits to parents' homes or places of employment or other personal contacts.

    School district personnel conduct the IEP meeting, if they are unable to obtain the parents' participation and provide the parents with information regarding decisions made about the educational placement of the child. If a decision is made to change the child's educational placement, the school district provides the parents with a Prior Written Notice to Parents PR-02 form and/or a copy of the child's amended IEP.

    The school district obtains parental consent:

    • Before the initial provision of special education and related services; and
    • Before making a change in a child's placement.

     

    5.8 Independent Educational Evaluation

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services who report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20 U.S.C. 1416(a)(3)(A)).

    Intent:

    To provide guidance for school districts (LEAs) on the requirements of an independent educational evaluation (IEE) and the steps involved, when there is a disagreement regarding the process.

    Timelines:

    Without unnecessary delay

    If the parent disagrees with an evaluation obtained by the school district and requests an independent educational evaluation (IEE) at public expense, the school district must, without unnecessary delay, either file a due process complaint to request a hearing to show that its evaluation is correct, or ensure that an IEE be provided at public expense.

    REQUIREMENT

    3301-51-05
    (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 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.

    (5) School district 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 these 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.

    GUIDANCE

    General

    If requested, the school district provides parents with information about where an independent educational evaluation (IEE) may be obtained and the district’s criteria for conducting such an evaluation. See above Requirements regarding school district criteria.

    If the parent disagrees with the school district’s evaluation the parent has the right to request an IEE at public expense.

    School district criteria

    The school district provides parents requesting an IEE its evaluator list along with the criteria that apply to evaluations (See Evaluation - 6.4 Planning and Conducting Evaluation). However, the parents may choose an evaluator to conduct the IEE who meets the district's criteria and is not on the school district’s list of evaluators.

    If an IEE is at public expense, the criteria under which the evaluation is obtained, including any geographic limitations on the evaluation and the qualifications of the examiner, must be 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 IEE.

    The criteria under which the IEE is conducted may include reasonable cost-containment criteria that are applicable to personnel used by the school district for evaluations, as well as to personnel used by parents for an IEE at public expense. However, the school district needs to provide the parents the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside of the school district's cost-containment criteria. (Federal Register, August 14, 2006, pg. 46689). The district may also choose to impose a reasonable geographic limitation on the conduct of evaluations.
     

    • An IEE may include areas of assessments not conducted by the school district. This is allowable if the parents believe that the school district’s evaluation was not complete and additional assessments are needed. If the school district disagrees with the parents, the school district is required to file a due process complaint to prove that its evaluation is appropriate.
    • The parents may challenge the district’s criteria as not being applicable to the child’s IEE, if they can provide documentation or explain why the criteria are unnecessarily restrictive. If the district disagrees with the parents, the parents may file a formal written complaint with the Ohio Department of Education, Office for Exceptional Children or file a due process complaint requesting a due process hearing to challenge the district’s criteria.

    The school district should develop a list that includes the names and addresses of at least two independent evaluators that meet the district’s criteria. This list does not include the school psychologist employed by or servicing the school district. Any geographic limitations,cost containment criteria or examiner qualifications imposed by the district should also be in writing and provided to parents requesting an IEE.
     

    The district may not impose any conditions or timelines on the process of obtaining an independent educational evaluation at public expense, except for the criteria or limitations referenced above. The tests and assessments that are appropriate for an IEE are determined by the requirements that govern the conduct of evaluations (See Evaluation - 6.4 Planning and Conducting Evaluation).

    REQUIREMENT

    3301-51-05
    (G) Independent educational evaluation
    (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) of this rule that the evaluation obtained by the parent did not meet district criteria.
    (c) If the school district files a due process complaint notice to request a hearing and the final decision is that the school district’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 may ask for the parent’s reason why the parent objects to the public evaluation. However, the school district may not require the parent to provide an explanation and 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 conducts an evaluation with which the parent disagrees.

    (4) Requests for evaluations by hearing officers
    If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation must be at public expense.

    GUIDANCE

    Parental right to evaluation at public expense

    When the school district of residence receives a request from the parents for an independent educational evaluation (IEE) at public expense after the school district has completed its evaluation of the child, the school district either files a due process complaint to show that the district’s evaluation is correct or grants the parents’ request and pays for the IEE. The school district must ensure that a timely decision is made as to whether or not it will file a due process complaint or grant the parents’ request for an IEE.

    • Providing the parents with a prior written notice refusing to allow the IEE is not an option under the federal or state laws and regulations.
    • Parents can request a publicly funded IEE any time after the district has completed its evaluation. There is no time limitation on making a request. However, the parents are entitled to only one IEE at public expense each time the school district conducts an evaluation or reevaluation with which the parents disagree.
      • The term “evaluation” includes any of the following assessments if completed separately from an initial evaluation or a reevaluation:
        • Functional behavioral assessment(FBA),
        • Technology assessment,
        • Physical therapy assessment,
        • Occupational therapy assessment,
        • Audiology assessment,
        • Orientation and mobility assessment,and
        • Any other type of assessments the child may require in order to determine the child’s eligibility and the services and supports needed by the child.
    • The IEE at public expense must meet the district’s criteria for conducting independent educational evaluations. These criteria may include cost-containment criteria that apply to personnel used to administer evaluations.
    • The parents should have the independent evaluator provide the district a copy of an IEE that was provided at public expense.

    If the school district receives a request to provide an IEE at public expense and has decided not to file a due process request to defend its evaluation, the school district:

    • Provides the parents with information about where an IEE may be obtained and the district’s criteria for evaluations; and
    • May ask the parents why they disagree with the district’s evaluation. The parents may choose not to explain;
      • The school district may not delay providing the IEE at public expense if the parents choose not to explain.
    • Provides the parents with the opportunity to explain why an evaluator who does not meet the district’s criteria should evaluate the child and why the cost of the evaluation exceeds the district’s cost-containment policies.

    When the school district receives a request to pay for an independent evaluation obtained by the parents at private expense after the school district has completed its evaluation, the school district:

    • Determines whether the evaluation meets the school district’s criteria for IEE.
    • Grants the parents’ request and pays for the IEE, if the evaluation meets the school district’s criteria for IEE.

    If the school district believes the privately funded evaluation does not meet its criteria for an IEE, the school district:

    • Provides the parents with prior written notice documenting the reasons why the evaluation does not meet the school district’s criteria for an IEE; and
    • Either files a due process complaint to request a hearing to show that the district’s evaluation is appropriate, or ensures that an IEE is provided at public expense.

    Filing a due process complaint

    The school district may file a due process complaint with the Ohio Department of Education, Office for Exceptional Children (ODE/OEC), if the school district believes:

    • Its evaluation is appropriate and it refuses to pay for an evaluation; or
    • The privately funded evaluation obtained by the parents does not meet the school district’s criteria for an evaluation, and the school district refuses to pay for another IEE because the district believes its own evaluation is appropriate.

    The school district files a due process complaint to request a hearing by following the procedures identified under Procedural Safeguards - 5.13 Due Process Complaints.

    The district informs the parents of its refusal to pay for an IEE through the Prior Written Notice to Parents PR-01form and advises the parents that if they pursue an IEE pending the outcome of the hearing, it may be at their own expense.

    The school district, depending on the specific case, may agree to participate in mediation offered by the Ohio Department of Education, Office for Exceptional Children.

    Providing an independent evaluation at public expense

    The school district provides the IEE at public expense when:

    • The parents request an IEE and the district agrees to pay for the evaluation if the evaluation meets the district’s criteria;
    • A hearing officer requests an IEE; or
    • A hearing officer finds that the district’s evaluation was not appropriate.

    Guidance provided by the U.S. Department of Education

    If the school district conducts a Functional Behavior Assessment (FBA) to evaluate a child to determine if a child is a child with a disability or conducts an FBA to develop or modify a behavioral intervention plan for a child, a parent who disagrees with the child’s FBA has the right to request an IEE at public expense. (OSEP letter to Dr. Kris Christiansen, February 9, 2007) (For guidance on conducting a functional behavioral assessment see Discipline - 8.3 Code of Conduct Violations - Removals of More than 10 Cumulative School Days - Change of Placement ).

    When a hearing officer orders an IEE, parental consent is required for the school district to release education records to the independent evaluator who will conduct the IEE. If a parent refuses to consent to the release of education records to an independent evaluator, a hearing officer could decide to dismiss the complaint (Federal Register, August 14, 2006, pg. 46690).

    REQUIREMENT

    3301-51-05
    (G) Independent educational evaluation
    (3) Parent-initiated evaluations If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation:

    (a) Must be considered by the school district of residence, if it meets district criteria, in any decision made with respect to the provisions of FAPE 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 the child.

    GUIDANCE

    Parent-initiated evaluations

    If the evaluation obtained by the parents meets the school district’s criteria for evaluations, the IEP and/or evaluation team reviews and discusses the evaluation, taking into consideration the findings or recommendations.

    • The IEP and/or evaluation team conducts this review of the evaluation funded at public expense and of private evaluations paid for by the parents.
    • The IEP team and/or evaluation team must consider results and recommendations from the IEE. The IEP and/or evaluation team is not required, but may include results from the IEE in the ETR or recommendations from the IEE regarding the child’s special education and related services in the IEP.
    • The IEP and/or evaluation team documents its consideration of information included in evaluations funded at public expense or private evaluations paid for by the parents.

    If the school district believes the privately funded evaluation does not meet its criteria for an IEE, the school district provides parents with the reasons documented in a Prior Written Notice to Parents PR-01 form.

    Parents are not required to share an evaluation they obtain at private expense. However, a privately funded evaluation that is not shared with a public agency would not be considered an IEE under this rule. (Federal Register, August 14, 2006, pg. 46690).

    If a hearing officer decides that the school district’s evaluation is correct or appropriate, the parents still have the right to an IEE at the parents’ expense. If the private evaluation obtained by the parents meets the district’s criteria for IEE and the parents share that private evaluation with the district, the district must consider that IEE in any decision it makes related to providing FAPE for that child.

    The school district or the parents may present information obtained through an IEE provided at public expense or a private evaluation shared by the parents at an impartial due process hearing regarding the child.

     

    5.9 Conflict Resolution

    Introduction

    The Individuals with Disabilities Education Improvement Act (IDEA) and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities strongly favor avoiding due process hearings when possible by resolving disputes through alternate, less adversarial and more cost-effective means. Ohio's Standards and IDEA offer several different approaches for resolving disagreements when parents and the school do not agree on a child’s identification, evaluation, educational placement or provision of a free appropriate public education. Additionally, there are informal strategies not addressed in IDEA or Ohio's standards that focus on collaborative problem-solving and improving communication between the school and the parents. A particular approach may be more appropriate than others at different times and for different reasons.

    Options for resolving disputes include:

    • Discussion or conference;
    • IEP meeting;
    • IEP facilitation;
    • Administrative review;
    • State complaints;
    • Mediation;
    • Due process complaint; and/or
    • Resolution meeting.

    Discussion or conference

    The first step in avoiding due process hearings and resolving disagreements is for school personnel and parents to sit down together and communicate. This is good practice in any situation where the school is aware of the potential for a dispute. This is often referred to as a case conference and may be requested by school district personnel or parents.

    IEP meeting

    This process is provided for under IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. The school district is responsible for determining when it is necessary to conduct an IEP meeting, and the child’s IEP team is responsible for reviewing the child’s IEP periodically, but at least annually, and for revising the child’s IEP, if appropriate. In addition, the parents of a child with a disability have the right to request an IEP meeting at any time.

    If the parents are concerned about their child’s rate of progress, the appropriateness of the services provided to the child or the child’s educational placement, it is appropriate for the IEP team to reconvene. At this meeting, the parents and the school district can discuss the parents’ concerns. As collaborative members of the IEP team, they may be able to work toward a solution that is agreeable to all and that benefits the child.

    IEP facilitation

    The IEP facilitation process is not required by IDEA or Ohio’s standards. However, the process has been adopted by the Ohio Department of Education, Office for Exceptional Children (ODE/OEC), as a process which may be viewed as less adversarial than a formal written complaint or request for a due process hearing. The services of the facilitator are provided by OEC at no cost to the school district or parents.

    The IEP facilitation process allows IEP teams to meet with an impartial third party to resolve issues regarding the child’s IEP. IEP facilitation is voluntary and must be mutually agreed upon by both the school district and the parents. The process may be used any time the IEP team cannot reach consensus concerning a child’s IEP. IEP facilitation should be used very early in the process of conflict resolution, when disagreements between the parties first emerge.

    The IEP facilitator has received specialized training in IEP development and helps keep IEP team members focused on developing the IEP, while addressing conflicts and disagreement that may arise during the meeting.

    IEP team members are required to sign an Agreement to a Facilitated Individualized Education Program (IEP) Meeting form.

    The IEP facilitation process is described in IEP Facilitation Procedures for Special Education, A Guide for Parents and Districts, Ohio Department of Education, Office for Exceptional Children, Revised September 2009.

    A brief overview of the process is described in the chart "Conflict Resolution Processes."

    Administrative reviews

    This process is provided for in Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. It provides parents or other educational agencies the opportunity to present complaints to the superintendent of the child’s district of residence and to resolve disputes at the local level. The superintendent or the superintendent’s designee conducts a review or may hold an administrative hearing, and in either case issues a written decision.

    Requirements and guidance are located in Procedural Safeguards - 5.10 Administrative Reviews.

    A brief overview of the process is described in the chart "Conflict Resolution Processes."

    State complaints

    This process is provided for under IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. A state complaint consists of a signed written complaint that is filed with ODE/OEC charging a violation under Part B of the IDEA or under Ohio’s laws and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. The complaint can be filed by any party, including an individual, parent, organization or third party. OEC will investigate a sufficient complaint and issue a written decision. This process allows for the prompt resolution of complaints at no cost to either the complainant or the school district and may be considered less adversarial than a due process hearing.

    Whenever a state complaint is filed by parents against a school district, the OEC will offer both parties the opportunity to take their dispute to mediation. If the mediation results in a written, signed agreement, the complaint is withdrawn and the agreement is implemented.

    Requirements and guidance are located in Procedural Safeguards - 5.12 State Complaint Procedures.

    A brief overview of the process is described in the chart "Conflict Resolution Processes."

    Mediation

    This process is provided for under IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. Mediation is a confidential, voluntary process for resolving disputes between two parties. Either school districts or parents may initiate it, and both parties must agree to the mediation. Mediation is offered by ODE/OEC at no cost to the school district or parents. However, both parties pay any individual costs, including the costs of any attorney they choose to use. Mediation is available at any time and is offered when a due process complaint or a state complaint is filed. A successful mediation results in a written, signed, legally binding agreement.

    Requirements and guidance are located in Procedural Safeguards - 5.11 Mediation. Additionally, information for parents is included in Statewide Special Education Mediation Procedures: A Guide for Parents, School Districts and Parent Advocacy Agencies, Ohio Department of Education, Office for Exceptional Children, September 2009.

    A brief overview of the process is described in the chart "Conflict Resolution Processes."

    Due process complaint

    This process is provided for under IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. A due process hearing is requested by filing a due process complaint. A due process complaint can be filed by parents, a school district, a county board of DD or another educational agency, and can lead to mediation, a resolution meeting and/or a hearing. The due process complaint is filed with the child’s school district of residence to resolve disputes about the child’s identification, evaluation, educational placement or provision of a free appropriate public education (FAPE). If the filing of the complaint leads to a hearing, an impartial hearing officer conducts a hearing and issues a written decision. That decision is final unless it is appealed to the ODE. The district pays for the cost of the hearing officer. Each party pays its own costs, including the costs of any attorneys, witnesses or experts they use, mailing and copying costs. However, the prevailing party in a due process action may go to court to seek reimbursement of reasonable attorney fees.

    Whenever a due process complaint is filed by either the parents or the school district, the OEC will offer to both parties the opportunity to take their dispute to mediation. If the mediation results in a written, signed agreement, the due process complaint is withdrawn and the agreement is implemented.

    Requirements and guidance are located in Procedural Safeguards - 5.13 Due Process Complaints and Procedural Safeguards - 5.15 Impartial Due Process Hearing.

    A brief overview of the process is described in the chart "Conflict Resolution Processes."

    Resolution meeting

    This process is provided for under IDEA and Operating Standards for Ohio Educational Agencies Serving Children with Disabilities. A resolution meeting must be held unless the parents and the school district agree to use the state mediation process or agree in writing to waive the meeting. The school district must convene a resolution meeting with the parents and relevant members of the IEP team within 15 days of receiving the parents’ due process complaint and before initiating a due process hearing. The purpose of this meeting is for the child's parents to discuss the due process complaint and the facts that form the basis of the due process complaint, so the school district has the opportunity to resolve the dispute. Discussions that occur during the resolution meeting are confidential. If a resolution to the dispute is reached, a written, legally binding agreement is developed and signed and the complaint is withdrawn. If an agreement is not reached, the due process hearing proceeds.

    Requirements and guidance are located in Procedural Safeguards - 5.14 Resolution Process.

    A brief overview of the process is described in the chart "Conflict Resolution Processes."

    Reference: Rebhorn, T., and Kupper, L. (2007, August). Introduction to procedural safeguards (Module 17). Building the legacy: IDEA 2004 training curriculum. Washington, DC: National Dissemination Center for Children with Disabilities. Available online at: http://www.nichcy.org/training/contents.asp

     

    5.10 Administrative Reviews

    State Performance Plan (SPP):

    (See Overview in the Introduction for information on the SPP.)

    Intent:

    To provide school districts (LEAs) and parents with an alternative means of resolving disputes and managing conflict at the local level.

    Timelines:

    Within 20 school days of receipt of a complaint

    Within 20 school days of receipt of a complaint, the superintendent or the superintendent's designee shall conduct a review, may hold an administrative hearing, and shall notify all parties in writing of the decision.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (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.

    GUIDANCE

    A brief overview of Administrative Reviews is described in the chart "Conflict Resolution Processes."

    Administrative reviews

    Administrative reviews are one option for conflict resolution in which parents or an agency may present a complaint to the superintendent regarding the identification, evaluation, or educational placement of a child with a disability, or the provision of a free appropriate public education (FAPE). This step is not a required before filing a state complaint or a due process complaint.

    The school district encourages parents and other agencies to deal with conflicts as soon as significant disagreements emerge, recommends the scheduling of an administrative review, and points out some advantages of this type of review:

    • It provides a quicker way of resolving disputes and can be employed quickly;
    • It may produce quicker results when the focus is on educational outcomes for the child; and
    • It may result in a collaborative resolution that addresses the interests of families and schools and can often preserve a working relationship.

      (Beyond Mediation: Strategies for Appropriate Early Dispute Resolution in Special Education, A briefing paper from The Consortium for Appropriate Dispute Resolution in Special Education(CADRE))

     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (1) Administrative reviews (continued)

    (b) The child’s parent or educational agency other than the school district 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 decision.
    (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.

    GUIDANCE

    Opportunity to present complaints to the superintendent

    A request for an administrative review may be made by the parents or by another agency, verbally or in writing.

    • If the request is made verbally, the school district should either ask the requesting party to make the request in writing, or the district should acknowledge the verbal request in a written communication sent via the U.S. Postal Service or electronically.
    • If the request is made in writing, the school district should immediately confirm receipt of the request by written communication sent via the U.S. Postal Service or electronically.

     

    Upon receiving the request for an administrative review, the school district immediately contacts the parents or the requesting party to schedule a review at a time and place that is convenient for all parties.

    • The school district arranges for any services that may be needed by the requesting party, such as:
      • Ensuring that the meeting place is accessible; and
      • Providing interpreter services for parents whose native language is not English or for parents who are hearing impaired or deaf.
      • Providing other needed accommodations.
    • If the request is made by an educational agency, the school district may, depending on the issue or issues to be resolved, notify the parents of the request and invite them to participate in the review.
    • If circumstances prevent the parents from attending the review in person, the school district may offer to use alternative means for the parents to participate, such as videoconferencing or conference telephone calls.

    The school district or the parents have the right to invite others to participate in the administrative review, including legal counsel. If the school district has a parent mentor, the school district or the parents may invite the parent mentor to participate in the review. The superintendent or his or her designee conducts the review.

    If the superintendent or designee decides to conduct an administrative hearing instead of a review, he or she contacts the district's legal counsel to determine what hearing process the district should follow.

    The superintendent or designee conducts the administrative hearing following the process recommended by its legal counsel.

    The superintendent or designee notifies all parties in writing of his or her decision within 20 days of receiving the verbal or written request for an administrative review.
     

    The school district and the requesting party implement the decision. If the party requesting the review is not satisfied with the decision, the party may:

     

    5.11 Mediation

    State Performance Plan (SPP):

    (See Overview in the Introduction for more information on the SPP.)

    SPP 8:
    Percent of parents with a child receiving special education services report that schools facilitated parent involvement as a means of improving services and results for children with disabilities. (20.U.S.C. 1416 (a)(3)(A))
    SPP 19:
    Percent of mediations held that resulted in mediation agreements (20.U.S.C. 1416 (a)(3)(B)).

    Intent:

    To provide school districts (LEAs) and parents an alternative means of settling special educational disputes through the use of a qualified and impartial mediator rather than by a formal complaint process or due process hearing. Mediation is an option even when a formal complaint or due process complaint has been filed.

    Timelines:

    Within five business days

    The mediator will schedule the mediation within five business days of receiving an appointment from the Ohio Department of Education, Office for Exceptional Children.

    Within 20 business days

    The mediation will be completed within 20 business days of the mediator’s setting the mediation session.

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

    Within 20 school days following the mediation agreement

    If the mediation requires changes in the IEP, the IEP team shall be convened to incorporate changes into the IEP within 20 school days following the mediation agreement, or as agreed to in the mediation agreement.

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

    Note: Detailed mediation procedures, including the roles and responsibilities of the Ohio Department of Education, the school district and the mediator, are included in Statewide Special Education Mediation Procedures: A Guide for Parents, School Districts and Parent Advocacy Agencies, September 2009; and Mediation Procedures for Special Education, A Guide for Parents, Ohio Department of Education, Office for Exceptional Children, September 2009. These documents are posted at http://education.ohio.gov, keyword search: mediation procedures.
     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (a) General
    The Ohio Department of Education shall establish state mediation procedures. Additionally, each school district must ensure that procedures are established and implemented to allow parties to disputes involving any matter under Part B of the IDEA, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.

    (b) 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.
    (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.

    (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 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.

    GUIDANCE

    A brief overview of Mediation is described in the chart "Conflict Resolution Processes."

    When a dispute arises regarding the education of a child with a disability and an impasse is reached, the school district contacts the parents (or the child if the child has reached the age of majority (18 years) and rights under Part B have been transferred to the child) to determine if they are interested in participating in mediation offered through the Ohio Department of Education, Office for Exception Children (ODE/OEC)

    • The ODE/OEC manages a statewide special education mediation system. Mediation is available through the system without the need to request a due process hearing or file a complaint. Whenever a due process hearing is requested by the parents or the school district or a formal complaint is filed by the parents, the OEC will offer both parties the opportunity to resolve their dispute through the mediation process.
    • Mediation is suitable for addressing any issue regarding a child’s eligibility for services, the services provided, or the manner in which the services were provided, including the scope of the services in question.
    • If parents initiate the request for mediation, ODE/OEC contacts the school district to determine whether they will agree to mediation.
    • To avoid confusion regarding the various conflict resolution options available under the IDEA and from the ODE/OEC, when an impasse is reached the school district should refrain from using the term "mediation" to refer to any district-level process for resolving disputes.

    The school district suggests that the parents review the information on mediation in Whose IDEA Is This? and also informs them that documents entitled Statewide Special Education Mediation Procedures: A Guide for Parents, School Districts and Parent Advocacy Agencies and Mediation Procedures for Special Education, A Guide for Parents are posted on the ODE Web site at http://education.ohio.gov, keyword search: mediation procedures.

    • The school district should offer to make a copy of this guide available to the parents and informs the parents that they may contact the ODE/OEC to obtain additional information about mediation.


    Mediation must be mutual and voluntary. If both parties are interested in participating in mediation, either party may call, fax or e-mail the OEC to request mediation. Contact:

    Chrissy Cline, Due Process Coordinator
    Toll free: (877) 644-6338
    Fax: (614) 728-1097
    E-mail: chrissy.cline@ode.state.oh.us

    Selecting and agreeing upon a mediator

    If both parties agree to mediation, the school district and parents select a mutually agreed upon mediator from the list of three mediators provided by the ODE/OEC and then submit the mediator’s name to ODE/OEC. The ODE/OEC assigns the agreed-upon individual to serve as mediator. Mediators are impartial third parties who are trained in effective mediation techniques and who are knowledgeable in laws and regulations regarding special education and related services.

    • If the district and parents cannot agree upon a mediator from the list of three, they may choose from the list of mediators maintained by ODE/OEC. A list of Ohio mediators and their qualifications is posted on the ODE Web site at www.ode.state.oh.us, keyword search: mediators in ohio.
    • If the district and parents still are unable to reach agreement within 10 calendar days, but still wish to mediate, the ODE/OEC may appoint a mediator if both parties agree.

     

    Whenever parents file a state-level complaint against a school district or a due process hearing is requested by either the parents or the school district, the ODE/OEC will offer to both parties the opportunity to take their dispute to mediation.

    • If a state complaint has been filed and the parties have agreed to mediate but are unable to reach agreement on a mediator, the ODE/OEC may appoint a mediator, if both parties agree. If the parties do not agree to ODE/OEC’s appointing a mediator, the ODE/OEC will move forward with the complaint as if the mediation was unsuccessful.
    • If a due process hearing has been requested and the parties are unable to reach agreement on a mediator, the ODE/OEC may appoint a mediator, if both parties agree. If the parties do not agree to ODE/OEC’s appointing a mediator, the ODE/OEC will move forward with the due process request as if the mediation was unsuccessful, unless the parties agree to waive the mediation process.

    Faciliated resolution meetings

    Mediators also are also available through the ODE/OEC to facilitate resolution meetings. When mediators serve in this role, they follow the rules for the resolution process described in Procedural Safeguards - 5.14 Resolution Process.
     

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (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.
    (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.

    GUIDANCE

    Procedures to offer to parents and schools that choose not to use mediation

    When the school or parents do not mutually agree to mediation, the school district may offer to make an impartial person available to explain the benefits of mediation and encourage participation in the mediation process.

    If the school and parents agree to such a meeting, school district personnel make arrangements for a meeting by:

    • Scheduling the meeting at a time and location convenient to the parents; and
    • Making arrangements for a person to be available at the agreed-upon time. Agencies that may assist in identifying a person to explain the benefits of mediation include:

    The school district makes arrangements for interpreting services if the parents are hearing impaired or deaf, or if the parents’ native language is not English; assures that the meeting place is accessible; and provides other needed accommodations.

    • The ODE/OEC pays for costs related to this meeting.

    The school district may not deny or delay the parents’ right to a due process hearing if the parents fail to participate in this meeting.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (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.
    (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.

    GUIDANCE

    Scheduling of mediation

    Once selected, the mediator contacts the parents and school district to identify a time and location for the mediation that is agreeable to all parties.

    • The mediator will schedule the mediation within five business days of receiving the appointment from OEC.
    • The mediation will be completed within 20 business days of the mediator’s scheduling the mediation session.
      • Extenuating circumstances such as scheduling difficulties and the inability of the mediator to reach the parties may result in an extension of the timelines. However, it is important that mediation always be scheduled and completed as soon as possible.
      • The length of the mediation process cannot be used to extend the timelines for state complaints or due process hearings, unless the ODE/OEC approves an extension in the case of state complaints or the hearing officer approves an extension in a due process request. (See requirements in Procedural Safeguards - 5.12 State Complaints and Procedural Safeguards - 5.15 Impartial Due Process Hearing).

    The school district will make arrangements for a neutral site for the mediation.

    • The site for the mediation should have two rooms, one for the mediation session and one for a party to wait while the mediator is meeting with the other party (caucus).
    • A copier must be available to ensure that copies of any signed agreement can be made for all parties.

    The school district makes arrangements for interpreting services if the parents are hearing impaired or deaf, or if the parents’ native language is not English, or any other accommodations (e.g., wheelchair access) that are needed by individuals who will participate in the mediation.

    The school district and parents each determine whom they want to include in the mediation. The parties do not need to agree on the individuals who will participate. Typically, the number of participants is kept to a minimum. The district should give consideration to including:

    • A school district administrator;
    • A representative of the school district that has the authority to commit resources (this could be the school administrator);
    • The person in the district responsible for special education services (e.g., a special education director or coordinator or a pupil personnel director);
    • Anyone else who may have unique information regarding the student (e.g., teacher, related services provider, doctor, psychologist);
    • Parents may choose to have the child with a disability who is the subject of the mediation process present for all or part of the mediation, at their discretion. The appropriateness of a child’s attendance generally depends on the age and maturity of the child. Because transition planning and transition services are designed to take into account the student’s preferences and interests, it is appropriate for a student with a disability receiving these services to attend and to participate in the mediation process.
    • The school district's attorney. Parent and school district attorneys may participate in the mediation.

    The school district and the parents may inform the mediator of who will attend the mediation. The school district and parents may want to ask the mediator to identify the potential participants. This may avoid an issue when the individuals arrive at the mediation. Mediation is voluntary, and either party has the right not to participate in the mediation process for any reason, including dissatisfaction with the participants slated to be in attendance.

    The school district and parents should prepare for the mediation by:

    • Identifying the issues to be discussed;
    • Organizing documents and making three copies of each (one for the district, one for the parents and one for the mediator);
    • Anticipating questions the other party may ask; and
    • Considering possible solutions to the problem.

      Special Education Mediation: A Guide for Parents, The Alliance and CADRE.

    The school district should send a representative who has the authority to commit resources to the mediation.

    The parties involved in the mediation will sign an Agreement to Mediate form indicating that they have been fully informed of the mediation process and agree to abide by the procedures and guidelines governing the process.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (3) Mediation
    (b) Requirements (continued)

    (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 who has the authority to bind such school district.
    (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.

    GUIDANCE

    Executing a legally-binding agreement

    Parties to the mediation process may sign a confidentiality pledge before the process begins. Because discussions that occurred during mediation must remain confidential, they may not be used in any subsequent due process hearings or civil proceedings.

    The parents and the school district representatives jointly develop the written agreement, with the assistance of the mediator.

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