On the spur of the moment, the Ohio Department of Education and Workforce (“ODEW”) refiled it’s new Ohio Operating Standards rule governing procedural safeguards. This meteoric move modifies the effective date from July 1, 2025 to January 24, 2025. The changes have been implemented through an amendment to OAC 3301-51-05.
The rule changes appear to significantly expand duties for other entities such as educational service centers (“ESC”) and joint vocational schools (“JVS”) to provide procedural safeguards protections for students with disabilities, where under current law the student’s district of residence (“DOR”) is responsible.
Specific procedural safeguards in the rule that incorporate this shift include:
- Adopting policies and procedures to ensure students with disabilities are given procedural safeguards
- Obtaining parent consent for initial evaluations, reevaluations, initial services, and change of placement
- Issuing a notice of transfer of parental rights at age of majority
- Appointing surrogates (an educational agency may appoint the surrogate if a request is made by the DOR)
- Providing an independent educational evaluation at public expense if requested by the parents, or filing due process if the entity wishes to contest the request
- Providing Prior Written Notice
- Participating in mediation
- Being named as a party in state complaints and due process complaints
As a result of this change for instance, it may now be possible for a family to name an ESC, JVS, or other entity as a party to a due process complaint, where under current law, a district of residence is the party which must answer a due process complaint.
Interestingly, the regulations still declare that a district of residence is ultimately responsible for ensuring that students with disabilities receive a Free Appropriate Public Education (“FAPE”) in accordance with state and federal law. It is not clear what will happen if other agencies are named in a due process complaint, and found liable in some way. It is also not clear whether these other agencies might be held responsible for failing to adhere to procedural safeguards over the past few years while the current rule has been in effect.
Along with this change to the procedural safeguards, ODEW has also recently released a new Special Education Model Policies and Procedures Manual for Educational Agencies. The Model Policies and Procedures can be found here:
ODEW states that for this school year, each Educational Agency is required to submit their model policies in whole, or alternatively submit their own version for approval by ODEW by March 30, 2025. Every year thereafter, the due date is November 30. The Policies and Procedures outline the Educational Agency’s responsibility for providing FAPE and procedural safeguards.
What does this mean for your Educational Agency? Thanks to this abrupt change in the rule’s effective date, educational agencies have about two months to draft new policies and procedures for your board to ratify and for ODEW to approve, or alternatively adopt ODEW’s model policies and procedures. It is important to recognize that the model policies were drafted largely from the perspective of a traditional school district. It may be worth an ESC or JVS district’s time and effort to consider developing their own policies before adopting what ODEW has published so that the policies better address the role these entities play as compared to a traditional school district. Contact a member of the EB team to discuss this further.