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Changing Placement: Helpful Legal References

11/17/11
by Wrightslaw

My principal is requiring that I have meetings to change students’ IEPs to correct the location of services under the direct service hours part of their IEPs.  All of their current IEPs state the location as “Special Education Setting.” Presently, a non-certified assistant is fulfilling direct service hours in an inclusive setting in the morning.

In the IEP, for location of services, could the “Special Education Setting” be interpreted as a setting where a special education teacher is present, such as in an inclusion classroom?

Good questions. It sounds like your principal is asking you to take actions about IEPs that are improper and illegal.

The law requires placement decisions to be made by a team – usually the team that developed the child’s IEP. Parents are required members of that team. Schools are required to offer a continuum of placements from regular ed class with supplementary services and supports to a special ed class, special ed school, home, hospital etc.

I expect you may have to deal with more requests to do things that are not legal.

Legal references are useful when you are dealing with an administrator who is not familiar with the legal requirements for placement, paraprofessionals, etc.

The following text is from Chapter 10 – Placement in our book, Wrightslaw: All About IEPs. The book includes over 200 questions and answers about IEPs. Each answer includes endnotes that reference the law or regulation that we relied on in the answer.

–BEGIN TEXT–

Placement Decisions
After the IEP team makes decisions about your child’s needs and the special education program, a team will decide your child’s placement — where the services will be provided. Placement decisions must be individualized and based on your child’s unique needs as described in the IEP.[i]

Who decides where my child will be placed?
In some states, the IEP team makes the placement decision. In other states, the decision may be made by another group of people who are knowledgeable about the child.

Do I have a say in decisions about my child’s placement?
Yes. Parents are members of any group that decides their child’s educational placement.[ii] The team must include people who know:

  • The child
  • What the evaluation results mean
  • What types of placements are appropriate

How does the team decide on a child’s placement?
The first option the team must consider is placement in the general education classroom at the school your child would attend if not disabled.[iii] The team needs to answer these questions:

  • Can this child be educated satisfactorily in the general education classroom?
  • What supplementary aids, services, and supports does the child need to be educated in the general education classroom?[iv]

Are there any rules about placement decisions?
Yes. Your child’s placement must be:

  • Based on your child’s unique needs as documented in the IEP
  • Determined at least once a year
  • As close to your child’s home as possible so your child can be educated in the school he would attend if he was not disabled.[v]

Your child’s placement may not be based on:

  • Your child’s disability category or label or severity of the disability (i.e., children with autism are placed in a class with other children with autism)
  • The school’s service delivery model (i.e., all children with learning disabilities receive “pull out’ or resource services)
  • The availability of special education and related services, staff location, or school district convenience. [vi]

Continuum of Alternative Placements
The Individuals with Disabilities Education Act requires that schools provide a continuum of alternative placements for children with disabilities.[vii]

What is the “continuum of alternative placements?”
The continuum of alternative placements refers to places where children receive special education services. Placements are on a continuum, from least to most restrictive. Your child’s placement may be in:

  • A regular classes, with needed supplementary aids and services
  • A special class where all children in the class receive special education services for some or all of the day
  • A special school
  • Home
  • A hospital or other institution
  • Another setting

In making a placement decision, the team must look at the full continuum of placement options.[viii]   . . . .

[i]  Commentary in 71 FR at 46588
[ii]  20 U.S.C. § 1414(e); 34 C.F.R. § 300.327; also Guide to the IEP: Deciding Placements from the U.S. Department of Education. URL: www.ed.gov/parents/needs/speced/iepguide/index.html#deciding
[iii]  34 C.F.R. § 300.116
[iv]  34 C.F.R. § 300.42; 34 C.F.R. § 300.114 – 300.116
[v]  20 U.S.C. § 1412(a)(5); 34 C.F.R § 300.314 – 300.317
[vi]  Commentary in 71 FR at 46588
[vii]  20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.115
[viii]  34 C.F.R. § 300.115

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4 responses so far ↓

  • 1 Jamie 09/17/14 at 1:11 pm

    My son has ASD and also qualifies for GT services. The district has decided to move all GT services to one school, but only for 2 mornings per month. Otherwise, the kids attend their neighborhood school. Our neighborhood school is the site for GT services, but my kid nearly got kicked out of that school before we got his ASD dx. Now he’s being forced to go to this school where he failed to function in order to participate in gifted programming. We just found this out, but I don’t think it’s legal to move him anywhere without at least a meeting.

  • 2 Morning 12/16/11 at 7:21 am

    My child is transferring to a new school district. She receives excellent SBRI reading instruction ( thanks to an IEE ), is making progress, but not yet achieved goals. School district wanted to discontinue the reading instruction to give her a break and let her enjoy her last few weeks in the school district. She is fully included, plans to go to college, etc. They provided no data, truly wanted the teacher for other staffing needs as my daughter is her only student four days a week for one class period. I was nice and stated, “there is no data or adequate progress to support a major change.” and, I stated that it is late in the game to change the IEP since she is transferring. They did not ask to drop her program after my comments.

    I know it’s hard to service one student. But, the school did not remediate during the early years which resulted in a major reading deficit. I had to involve an advocate and the state. The school district did their job once I had back-up. I am collaborative and supportive, we have a great relationship. But, the request to discontinue a major component of the service on the IEP for a dyslexic student is important. It was requested only to assign the teacher to other duties as my child is transferring. Regression has occurred unless she gets the program. I do ask questions,attend workshops and read Wrightslaw. The request proves that parents need to be aware.

  • 3 Wrightslaw 11/19/11 at 12:49 pm

    Jean: Excellent questions for parents to ask. I’ll add one more:

    How will progress toward the measurable IEP goals be measured? How much progress is sufficient in a school year?

  • 4 Jean 11/17/11 at 7:29 pm

    It is alarming that changing services based on staffing considerations is such a widespread practice. Parents are made to feel foolish if they ask questions, and are given excuses by people who know better. Teachers are fearful for their jobs if they speak up. Some teachers do great things; others want to but don’t have the skills as the district hires whoever they can get to take the job. The knowledge/strategies necessary to educate children has existed for years, but skilled professionals are needed. It takes a willingness to raise the profession to a higher level,so only the best compete for the right to be educators. At the IEP parents need to say: 1)explain the specialized instruction my child receives for ___ 2)what does it look like and why are you doing it? 3)what supports are necessary for this to happen? 4)show me the data!