(A) Each
school
district
educational agency shall adopt
and implement written policies and procedures, approved by the Ohio department
of education, office for exceptional children, ensuring that a free appropriate
public education (FAPE) is made available to all children with disabilities
between the ages of three and twenty-one, inclusive, including children with
disabilities who have been suspended or expelled from school, for whom the
school district is the child's school district of residence, as defined in
paragraph (B)(56) of rule
3301-51-01 of the Administrative
Code and as
provided by rule
3301-51-01 of the Administrative
Code
in accordance with Part B of the
Individuals with Disabilities Education Act of 2004, December 2004 (IDEA),
related provisions of the Code of Federal Regulations and sections
3323.02,
3323.07 and
3314.19 of the Revised
Code.
(B) FAPE
(1) General
Each school district
educational agency shall make FAPE available to
all children between the ages of three and twenty-one, inclusive, including
children with disabilities who have been suspended or expelled from school, as
provided for in rule
3301-51-05 of the Administrative
Code, for whom the school district is the child's
school district of residence.
(2) FAPE for children beginning at age three
Each school district
educational agency must ensure that:
(a) The obligation to make FAPE available to
each eligible child for whom the school district is
the child's school district of residence begins no later than the
child's third birthday; and
(b) An
individualized education program
(IEP) is
in effect for the child by that date, in accordance with rule
3301-51-07 of the Administrative
Code.
(c) If a child's third
birthday occurs during the summer, the child's
IEP
individualized
education program team shall determine the date when services under the
IEP
individualized
education program will begin.
(3) Children advancing from grade to grade
(a) Each
school
district of residence
educational agency
must ensure that FAPE is available to any individual child with a disability
who needs special education and related services, even though the child has not
failed or been retained in a course or grade, and is advancing from grade to
grade.
(b) The determination that a
child described in paragraph (B)(1) of this rule is eligible under this chapter
of the Administrative Code, must be made on an individual basis by the group
responsible within the child's school district of residence for making
eligibility determinations.
(C) Limitation: exception to FAPE for certain
ages
The obligation of the school
district of residence to make FAPE available to all children with
disabilities does not apply with respect to the following:
(1) Children with disabilities who have
graduated from high school with a regular high school diploma;
(2) The exception in paragraph (C)(1) of this
rule does not apply to children who have graduated from high school but have
not been awarded a regular high school diploma;
(3) Graduation from high school with a
regular high school diploma constitutes a change in placement, requiring
written prior notice in accordance with rule
3301-51-05 of the Administrative
Code;
(4) As used in paragraphs
(C)(1) to (C)(3) of this rule, the term regular high school diploma does not
include an alternative degree that is not fully aligned with Ohio's academic
content standards, such as a certificate or a general educational development
credential; and
(5) Children with
disabilities who are eligible under Subpart H of Part B of the Individuals with
Disabilities Education Act, as amended by the Individuals with Disabilities
Education Improvement Act of 2004, December 2004 (IDEA), but who receive early
intervention services under Part C of the IDEA.
(D) FAPE: methods and payments
(1) Each
school
district of residence
educational agency
shall use whatever state, local, federal, and private sources of support are
available
in
to the
school
district
educational agency to meet the
requirements of Part B of the IDEA. For example, if it is necessary to place a
child with a disability in a residential facility,
a
school district of residence
an educational
agency could use joint agreements between the agencies involved for
sharing the cost of that placement.
(2) Nothing in this rule relieves an insurer
or similar third party from an otherwise valid obligation to provide or to pay
for services provided to a child with a disability.
(3) Consistent with rule
3301-51-07 of the Administrative
Code, each
school district
educational agency must ensure that there is no
delay in implementing a child's
IEP
individualized education program, including any
case in which the payment source for providing or paying for special education
and related services to the child is being determined.
(E) Residential placement
If placement by the school district of residence in a public or
private residential program is necessary to provide special education and
related services to a child with a disability, the program, including
non-medical care and room and board, must be at no cost to the parents of the
child.
(F) Assistive
technology
(1) Each
school district
educational agency must ensure that assistive
technology devices or assistive technology services, or both, as those terms
are defined in rule
3301-51-01 of the Administrative
Code, are made available to a child with a disability if required as a part of
the child's:
(a) Special education under rule
3301-51-01 of the Administrative
Code;
(b) Related services under
rule
3301-51-01 of the Administrative
Code; or
(c) Supplementary aids and
services under rule
3301-51-09 of the Administrative
Code.
(2) On a
case-by-case basis, the use of school-purchased assistive technology devices in
a child's home or in other settings is required if the child's
IEP
individualized
education program team determines that the child needs access to those
devices in order to receive FAPE.
(G) Extended school year services
(1) General
(a) Each
school
district
educational agency must ensure
that extended school year services are available as necessary to provide FAPE,
consistent with this rule.
(b)
Extended school year services must be provided only if a child's
IEP
individualized
education program team determines, on an individual basis, in accordance
with rule
3301-51-07 of the Administrative
Code, that the services are necessary for the provision of FAPE to the child.
Additionally, the school
district
educational agency shall
consider the following when determining if extended school year services should
be provided:
(i) Whether extended
school year services are necessary to prevent significant regression of skills
or knowledge retained by the child so as to seriously impede the child's
progress toward the child's educational goals; and
(ii) Whether extended school years services
are necessary to avoid something more than adequately recoupable
regression.
(c) In
implementing the requirements of this rule,
a school
district
an educational agency shall
not:
(i) Limit extended school year services
to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or
duration of those services.
(2) Definition
As used in this rule, the term "extended school year services"
means special education and related services that:
(a) Are provided to a child with a
disability:
(i) Beyond the normal school year
of the
school district
educational agency;
(ii) In accordance with the child's
IEP
individualized
education program; and
(iii)
At no cost to the parents of the child; and
(b) Meet the standards of the Ohio department
of education.
(H) Nonacademic services
(1) Each
school
district
educational agency must take
steps, including the provision of supplementary aids and services determined
appropriate and necessary by the child's
IEP
individualized
education program team, to provide nonacademic and extracurricular
services and activities in the manner necessary to afford children with
disabilities an equal opportunity for participation in those services and
activities.
(2) Nonacademic and
extracurricular services and activities shall include counseling services,
athletics, transportation, health services, recreational activities, special
interest groups or clubs sponsored by the school district, referrals to
agencies that provide assistance to individuals with disabilities, and
employment of students, including both employment by the
school district
educational agency and assistance in making outside
employment available.
(I) Physical education
(1) General
Physical education services, specially designed if necessary,
must be made available to every child with a disability receiving FAPE, unless
the school district
educational agency enrolls children without
disabilities and does not provide physical education to children without
disabilities in the same grades.
(2) Regular physical education
Each child with a disability must be afforded the opportunity
to participate in the regular physical education program available to
nondisabled
non
disabled children unless:
(a)
The child is enrolled full time in a separate facility; or
(b) The child needs specially designed
physical education, as prescribed in the child's
IEP
individualized
education program.
(3) Special physical education
If specially designed physical education is prescribed in a
child's IEP
individualized education program, the
school district
educational agency responsible for serving the child
must provide the services directly or make arrangements for those services to
be provided through other public or private programs.
(4) Education in separate facilities
The school district
educational agency responsible for serving a child
with a disability who is enrolled in a separate facility must ensure that the
child receives appropriate physical education services in compliance with this
rule.
(J)
Program options
Each school district
educational agency must take steps to ensure that
children with disabilities served by the school
district
educational agency have
available to them the variety of educational programs and services available to
nondisabled
non
disabled children in the area served by the school district, including
art, music, industrial arts, consumer and homemaking education, and vocational
education.
(K) Routine
checking of hearing aids and external components of surgically implanted
medical devices
(1) Hearing aids
Each school district
educational agency must ensure that hearing aids
worn in school by children with hearing impairments, including deafness, are
functioning properly.
(2)
External components of surgically implanted medical devices
(a) Subject to paragraph (K)(2)(b) of this
rule, each school district must ensure that the external components of
surgically implanted medical devices are functioning properly.
(b) For a child with a surgically implanted
medical device who is receiving special education and related services under
this chapter of the Administrative Code,
a school
district
an educational agency is not
responsible for the post-surgical maintenance, programming, or replacement of
the medical device that has been surgically implanted (or of an external
component of the surgically implanted medical device).
(L) Placement of children by
parents when FAPE is at issue
(1) General
This rule does not require a school district of residence to
pay for the cost of education, including special education and related
services, of a child with a disability at a nonpublic school or facility if
that school district made FAPE available to the child and the parents elected
to place the child in a nonpublic school or facility. However, the school
district must include that child in the population whose needs are addressed
consistent with rule
3301-51-08 of the Administrative
Code.
(2) Disagreements
about FAPE
Disagreements between the parents and a school district of
residence regarding the availability of a program appropriate for the child,
and the question of financial reimbursement, are subject to the due process
procedures in rule
3301-51-05 of the Administrative
Code.
(3) Reimbursement for
nonpublic school placement
If the parents of a child with a disability, who previously
received special education and related services under the authority of the
school district of residence, enroll the child in a nonpublic preschool,
elementary school, or secondary school without the consent of or referral by
the school district of residence, a court or a hearing officer may require the
school district of residence to reimburse the parents for the cost of that
enrollment if the court or hearing officer finds that the school district of
residence had not made FAPE available to the child in a timely manner prior to
that enrollment and that the private placement is appropriate. A parental
placement may be found to be appropriate by a hearing officer or a court even
if it does not meet the state standards in this chapter of the Administrative
Code that apply to education provided by the school districts.
(4) Limitation on reimbursement
The cost of reimbursement described in paragraph (L)(3) of this
rule may be reduced or denied if:
(a)
At the most
recent individualized education program team meeting that the parents attended
prior to removal of the child from the public school, the parents did not
inform the individualized education program team that they were rejecting the
placement proposed by the school district of residence to provide FAPE to their
child, including stating their concerns and their intent to enroll their child
in a nonpublic school at public expense; or
(b)
At least ten
business days (including any holidays that occur on a business day) prior to
the removal of the child from the public school, the parents did not give
written notice to the school district of residence of the information described
in paragraph (L)(4)(a) of this rule; or
(c)
If prior to the
parents' removal of the child from the public school, the school district of
residence informed the parents, through the notice requirements described in
rule 3301-51-05 of the Administrative
Code, of its intent to evaluate the child, including a statement of the purpose
of the evaluation that was appropriate and reasonable, but the parents did not
make the child available for the evaluation; or
(d)
Upon a judicial
finding of unreasonableness with respect to actions taken by the parents.
(a) If:
(i) At the most recent IEP team
meeting that the parents attended prior to removal of the child from the public
school, the parents did not inform the IEP team that they were rejecting the
placement proposed by the school district of residence to provide FAPE to their
child, including stating their concerns and their intent to enroll their child
in a nonpublic school at public expense; or
(ii) At least ten business days
(including any holidays that occur on a business day) prior to the removal of
the child from the public school, the parents did not give written notice to
the school district of residence of the information described in paragraph
(L)(4)(a)(i) of this rule; or
(b) If prior to the parents' removal
of the child from the public school, the school district of residence informed
the parents, through the notice requirements described in rule
3301-51-05 of the Administrative
Code, of its intent to evaluate the child (including a statement of the purpose
of the evaluation that was appropriate and reasonable), but the parents did not
make the child available for the evaluation; or
(c) Upon a judicial finding of
unreasonableness with respect to actions taken by the parents.
(5) Exception
Notwithstanding the notice requirement in paragraph (L)(4)(a)
of this rule, the cost of reimbursement:
(a) Must not be reduced or denied for failure
to provide the notice if:
(i) The school
prevented the parents from providing the notice;
(ii) The parents had not received notice,
pursuant to rule
3301-51-05 of the Administrative
Code, of the notice requirement in paragraph (L)(4)(a) of this rule;
or
(iii) Compliance with paragraph
(L)(4)(a) of this rule would likely result in physical harm to the
child.
(b) May, in the
discretion of the court or a hearing officer, not be reduced or denied for
failure to provide this notice if:
(i) The
parents are not literate or cannot write in English; or
(ii) Compliance with paragraph (L)(4)(a) of
this rule would likely result in serious emotional harm to the child.
Notes
Ohio Admin. Code 3301-51-02
Effective:
7/1/2023
Five Year Review (FYR) Dates:
10/14/2022 and
07/01/2028
Promulgated
Under: 119.03
Statutory
Authority: 3301.07,
3301.07(J),
3323.02,
3323.07
Rule
Amplifies: 3323.02,
3323.07
Prior
Effective Dates: 07/01/2002, 07/01/2008,
07/01/2014
