On April 4, 2025, ODEW re-released its Special Education Model Policies with changes that were adopted with input from school board attorneys such as your team at Ennis Britton and the Ohio Council of School Board Attorneys (“OCSBA”). These changes follow the decision by ODEW to push back the deadline to adopt new policies and procedures to May 30, 2025. We appreciate the seriousness with which ODEW has sought and acted on feedback from stakeholders in refining the Model Policy.

The changes that were made to the Model Policy include removing a sentence that would have added “emerging skills” as a consideration for determining whether a student qualifies for Extended School Year (ESY) services and removing a sentence that said that would have had the effect of prohibiting reasonable cost criteria for Independent Educational Evaluations (IEEs). The latest revisions to the Model Policy bring it into alignment with the applicable law and cases governing Ohio schools.

In addition to revising the Model Policy, ODEW has also drafted revisions to the required and optional special education forms (e.g., IEP, ETR, prior written notice, etc.). The proposed revisions have been posted on the Office for Exceptional Children website, and ODEW is soliciting comments through May 23 using an online survey and through virtual sessions scheduled for April 24, May 6, May 8, and May 13 (registration required). Find the proposed forms, the survey, and virtual session registration here:

Ohio Required and Optional Forms | Ohio Department of Education and Workforce

What Does This Mean for Your District?

 ODEW was responsive to concerns raised by education stakeholders regarding the initial version of the Model Policy. This cooperation between ODEW and public education agencies is commendable and is key to insuring Ohio’s schools appropriately serve their communities and students. As ODEW solicits input on revisions to special education forms it is important for educators to advocate for appropriate revisions that ensure the forms are aligned with the law and support not just compliance, but also the effective operation of school districts.

Educational agencies are still required to adopt the model policies and procedures, or obtain approval from ODEW for alternate policies and procedures, by May 30, 2025. Especially for ESCs and CTCs, the adoption of the new policies and procedures could be interpreted as an expansion of your duties which were outlined in the changes to OAC 3301-51-05 in January.[1]

Some educational agencies may have already adopted and approved the prior version of the model policies and procedures. ODEW has stated that the adoption of the model policies and procedures prior to the update is still sufficient for their requirements. However, the meaningful changes in the revised Model Policy warrant consideration of additional action to adopt the latest revisions. Please contact your attorney at Ennis Britton if you have any questions or concerns regarding the adoption of the model policies and procedures.      

[1] See our article on the changes to OAC 3301-51-05 and the Model Policies and Procedures: https://ennisbritton.com/blog/2025/special-education-update-abrupt-changes-to-ohios-new-procedural-safeguards-rule-leave-educational-agencies-in-a-strange-place

With the release of the March 11, 2025 Organizational Chart, the Federal Administration announced the closing of six regional offices of the Office for Civil Rights, the agency designated to oversee and investigate allegations of discriminatory conduct in schools, including Section 504 complaints. The shuttered offices include the Boston, Dallas, New York City, Philadelphia, San Francisco, and the Chicago/Cleveland offices, which included the only regional office with a physical presence in Ohio. The five remaining locations are in Denver, Kansas City, Seattle, Atlanta, and Washington, DC.

With persistent concerns about the timeliness of responses from the agency under the best of circumstances, the closing of these offices can be expected to cause greater delays in the complaint resolution process.

A review of the new Organizational Chart shows significant cuts in the following offices:

• Institute of Education Sciences: Responsible for analysis of statistical data and evaluation, and funding of federal programs
• Office of Planning, Evaluation and Policy Development: Responsible for policy development, review, and implementation for the entire Department
• Office of Elementary and Secondary Education:  Responsible for “directing, coordinating and recommending policy for programs designed to help State and local educational agencies improve the achievement of preschool, elementary and secondary school students” and “support equal access to services to help every child achieve”
• Office of English Language Acquisition: Responsible for ensuring that English language learners and immigrant students attain English proficiency and achieve academic success (completely eliminated)

What this means for schools: It is yet to be seen how these drastic cuts in personnel and programming will ultimately impact the daily operations of local educational agencies. At the very least, schools should expect delays in processing and resolving complaints filed with OCR and possible changes in the level of express federal guidance on critical issues. The cuts at OCR are being challenged by 21 states in State of New York v. McMahon filed in the federal district court in Massachusetts.

G.M. v. Barnes, 114 F.4th 323 (4th Cir. 2024).

On September 4, 2024, the Fourth Circuit Court of Appeals upheld a lower court ruling that a second-grade student with dyslexia and attention deficit hyperactivity disorder (ADHD) was not eligible for special education services under the Individuals with Disabilities Education Act (IDEA). After his parents noticed a decline in his standardized test scores compared to the previous year, an IEP team was convened to determine the student’s eligibility. The Maryland school district determined that the student was ineligible based on his performance. His parents then removed him to a private school, and filed a due process complaint against the district for denying their son a free and appropriate public education (FAPE).

To qualify for special education under the IDEA, a student needs to demonstrate they have a qualifying disability and “by reason thereof” require special education and related services. In this case, the parents argued that the student had two qualifying disabilities:

1. A specific learning disability (SLD) arising from his dyslexia; and
2. An other health impairment (OHI) arising from his ADHD.

Despite the student’s decline in his reading and writing standardized test scores, the district argued that the student’s test scores still indicated that he had average achievement in reading, writing, and mathematics compared to his peers. Additionally, his teacher, who had previously expressed concerns with his reading and writing ability, indicated on his final report card that he was “independently or with assistance meeting all of the criteria that are listed” for second grade, including reading and writing requirements. Based on his academic performance, the due process case came out in favor of the district with a conclusion that the student did not need special education services.

On appeal, the 4th Circuit concluded that the student did not have a SLD. While dyslexia can be an SLD under the IDEA, Maryland regulations instruct IEP teams to determine a student has an SLD if they do not achieve adequately for their age or meet state approved grade level standards when provided with learning experiences appropriate for the student’s age and ability levels. The student’s achievement is inadequate if the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, state-approved grade-level standards, or intellectual development. Because his test scores and evidence presented by the parties indicated that his reading and writing ability were within the expected range for his grade level, his parents failed to demonstrate that he had a cognizable weakness.

The Court did agree with the parents that the student’s ADHD qualified as an OHI, but they concluded that he did not require specially designed instruction because of his ADHD. Under the IDEA, “a student does not ‘need’ such services if the student is already getting what would qualify as a FAPE without them.” The 4th Circuit reminded the parties that progress through the system is what is generally meant by an “education” and for most children, FAPE means a program “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” Endrew F., 137 S. Ct. 988 (2017).

While the 4th Circuit recognizes that no parent wants to see their child fail to reach their academic potential, they cautioned that the IDEA should not be used as “a vehicle for securing a potential-maximizing education.” (Quoting Rowley, 458 U.S. at 197 n.21). This student was fully integrated in the regular classroom setting; he received passing marks and was independently or with assistance meeting all the listed criteria; and he was advancing from grade to grade. This was enough for FAPE. His parents’ concerns about the drop in his standardized test scores, even if legitimate, were not enough to change that.

What does this mean for your district? While this case is not controlling in Ohio, it is informative and highlights the focus for evaluation teams in a post-Endrew F. world: not only does a student have an identified disability, but also, because of that identified disability, do they require specially designed instruction and / or related services? Districts should consider the unique needs of the child when calculating what is necessary to enable appropriate progress, and academic progress can be a strong indicator that a student is receiving FAPE. If a student is already receiving what would qualify as FAPE, they may not be eligible under the IDEA because they do not require special education and related services. This is true even if the student appears to have a qualifying disability.