The Ohio Department of Education and Workforce (“ODEW”) recently adopted changes to the procedural safeguard rules in the Ohio Operating Standards for the Education of Students with Disabilities (“Operating Standards”). These changes, which are likely to take effect this school year, will significantly alter the responsibilities for educational agencies such as joint vocational school districts (“JVS”) and educational service centers. The proposed changes were initially published in July and were finalized in October after the last round of public comments closed. Although the changes are significant, the ODEW received only two public comments before the regulation was sent for final approval to the Joint Committee on Agency Rule Review (“JCARR”).
The procedural safeguard rule, codified in OAC 3301-51-05, establishes legal protections and rights that must be provided to students with disabilities and their parents under the Individuals with Disabilities Education Act (“IDEA”). These rules ensure that students receive a free appropriate public education (“FAPE”) and that parents are actively involved in their child’s education. Procedural safeguards provide a framework that encourages collaboration and accountability in the special education process.
Under the current version of the rule, a student’s district of residence is generally responsible for ensuring that procedural safeguards are provided to eligible students. When parents and students believe that they have not received the procedural safeguards to which they are entitled, they may file for due process against the district of residence, even if the student is enrolled in a joint vocational school district program. This may be about to change under the new rule, where the term “district of residence” has been replaced by the term “educational agency” throughout the rule. The term “educational agency” appears to include a JVS as well as other entities such as an educational service center.
These “educational agencies” are now listed as the parties responsible for all of the following under OAC 3301-0-51-05:
- Obtaining parental consent on evaluations and services;
- Sending notice about transfer of rights at a student’s age of majority;
- Assigning surrogates to students;
- Paying for or filing due process when a parent requests an Independent Educational Evaluation at public expense;
- Considering results of an outside evaluation that is obtained by the parent;
- Drafting and sending Prior Written Notices;
- Being named in due process and state complaints; and
- Participating in facilitation and mediation.
This is where things get more complicated and confusing. The other rules in the Operating Standards have not been changed, and now appear to conflict with the Procedural Safeguards rule. For instance, rule OAC 3301-51-02 declares that a district of residence and not any other “educational agency” is ultimately responsible for providing FAPE. While a due process complaint may now be filed against a JVS rather than a district of residence, it seems that the district of residence still has a lot at stake and may still be responsible for addressing any FAPE deficiencies that are discovered through the hearing process. It remains unclear how ODEW and hearing officers will harmonize the conflicting provisions.
In the meantime, joint vocational school districts should contact member districts and discuss how both entities may work together to ensure that Procedural Safeguards are provided to all students who receive protections under the IDEA. It may be helpful to set aside some time in upcoming professional development sessions to help JVS staff learn more about the procedural safeguards that they may not have been directly responsible for or involved with in the past. Stay tuned for further updates.