Changing Placement: Helpful Legal References

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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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Jamie

My son who is only 9 has been diagnosed with anxiety and emotional distressed and last year started IEP services. About 3 weeks when his aggression started coming out. This week he was placed in an isolated classroom with only one other student without notifying my husband, and told my son that this would be where he would be until further notice. After I emailed the administrators it was then told to me with less than 48 hours notice when his ARD meeting would be. I later listened to messages on a home phone that we do not use, but the 1st message was still less than 48 hours before the meeting. My husband also talked to the principal and she said they tried to have a meeting 2 weeks prior but couldn’t, we were not made aware of this. What can I do?

Chuck

I am with the TX parent training and information center. Find our staff that works with your area, http://www.prntexas.org

Vicki

My son is autistic last year he was in RR science this year we were not given meaningful participation in choosing classes we have gen ed science lab it’s way over his head he’s not cognitively able to handle glass beakers or chemicals smells the sped director refuses to change his class now I am pulling him out every day before this class as he is having ptsd triggers and I fear he will self harm how so I for the sake of safety get the school to comply his IEP is a mess no measurable goals I’m scared

Chuck

You may need to use the dispute resolution process that the law provides parents. Your state parent training and information can assist you. http://www.parentcenterhub.org/find-your-center

J

My daughter is in A direct instruction special education class for reading and math. For the past few years she has been in a small group of 4 or 5 for reading and math. And it states in her IEP she need to be in a “smaller group environment “ and is in need of direct instruction for reading and math. This year the school increased her group size to 14 and 15 for reading and math and says it is still a small group with a special education teacher. My daughter is not keeping up. Is there any precedent or case law that says the Increase in teacher to student ratio is a change in placement?

melissa

I am a teacher who see’s most of my students 4x’s a week for 60 minutes or 240 minutes a week in a resource room. I have been told that I need to pull them 5 days a week, which bumps their minutes to 300 even though it is not written in the IEP’s. Can I do this legally or does it change placement? IEP states placement as less than 21% in resource.

Lisa

My child current school is trying to change my child’s placement from PI (physically impaired) on special standards to SLA supported learning academics…in the new placement my child will be in classes with children who run away throw things and are often fighting with others…what are my rights as a parent to say no? And on which grounds?

Chuck

Your state parent training and information project will be aware of your state rules and can assist you. http://www.parentcenterhub.org/find-your-center

Jamie

My son has down syndrome & was in an inclusive pre-K class. The school lost funding for this class & has informed us that we must place him in an all sped pre-k class or bus him across the county if we want him to be in an inclusive class. His IEP states he is to be in a general ed setting. We’ve been told that as long as the services are offered, we have no say in where they are offered. Is this true?

joannie

Unfortunately, yes. but I would request an IEP to see if you can’t come to an agreement on an amended placement.

Chuck

You can also talk with your state parent training & information project. They will know more about your state rules, & procedures. The district has already determined that an “all sped pre-k class” is not the LRE for him. Therefore, I feel that they should be responsible for transportation or an LRE setting.

Shannon

When making changes in placement of a students IEP, does the law require a NEW IEP be developed stating the change in placement and reasons for the change? or is a handwritten note on the current IEP good enough if all parties sign the handwritten ammendment? Example: A student placed in a self contained classroom and the placement was changed to part of the day in a general education classroom. .

Chuck

To me the key is that decisions are clear, easy to find, and communicated to all who need to know. Your state education agency may have rules on this. Your state parent training and information project should know. http://www.parentcenterhub.org/find-your-center

Banie

Can someone help me please. I just recently move out of CT but before I moved I had a PPT meeting at my son school at the end of the school year where they make a decision for him to go to all day summer school. I have agreed and signed off on all the changes in his IEP at that time but when summer school started they told me that they have withdrawn him from the summer school because I have moved out of District. Now no one had notified me about my son being withdrawn from the summer school program. now can someone tell me if I was wrong or they are wrong for withdrawing him from the program without notifying me about the changes that they decide to make.

Chuck

The CT parent training & information center can assist you. http://www.parentcenterhub.org/find-your-center

sheila

If you moved out of the district then the district was no longer responsible for providing the services. You need to contact your new school district for an IEP to see what comparable services they will offer.

Tonja

I have a 6 yr. old autistic son who could only spend 2 hours 45 minutes 5 days a week due to behavior issues in Kindergarten class with some special assistant occasionally. At the IEP meeting the Principal threatened to report me for not agreeing to move him to 1st grade. I need an advocate in July to go with me to let them know my husband & I disagree.

Phill

where is the federal law for;
Your child’s placement may not be based on: The school’s service delivery model (i.e., all children with learning disabilities receive “pull out’ or resource services)

For example, a district, that has a “Structured” classroom that is strictly for children with autism.

Phill

Chuck can you please find me the federal law?

Chuck

300.115 requires that schools must have a “continuum of alternative placements” to meet the needs of children with disabilities. The state may have additional rules or guidance in determining placement. Your state parent training & information center will know of any state rules. http://www.parentcenterhub.org/find-your-center

Dianne

Is it considered a change of placement if the student is assigned 5 days (within the 10 days) to be served at DAEP at a different school? Would it require an IEP meeting/MDR since it is a DAEP and not home campus? Thanks!

Chuck

No, unless there have been 6 or more days of change of placement this school year.

Maryann

Our IEP for placement is next week. My husband, daughter and I have pretty much made up our minds already about where we want her to go, and hopefully the team will agree… Wish us luck.

Chuck

Good Luck!!

Marcus

Maryann I wish you and your family luck with your IEP placement. I would actually take evidence in writing explaining why you like the deciding placement. This may make the meeting go a lot smoother.

Aimee

Our school district has recommended educational placement for our 14 year son due to his behavior and not being able to provide FAPE. They have recommended a TEA certified school, that they have a contract with, and are wanting to have a transfer ARD.
The SPED team leader emailed and said that they were removing related services, counseling, music. adaptive PE, and course curriculum, then once it is approved by the district, then the new school placement will evaluate for speech, OT, and ABA.and hold a ARD.
Last goals update, in a email, stated that no data was been in taken, as the teacher, district could not provide FAPE. We go into ARD on 12-18-17. Not sure what to do.
We are in Texas.

Chuck

There is much info that you, & anyone trying to assist you need to know. Is this for a day or residential program? You need time to research, & visit the school that is being recommended. Being certified by TEA does not tell you much. You need to try to determine if there is a good chance that the school can provide FAPE. If you are not ready to agree to their recommendations on the 18th, you can disagree with the recommendations. Then they must recess the meeting for about 10 days. This can give you more time to research, & consider what is best. I work for the TX parent training & information center. I can assist you, & connect you with our staff in your area. cnoe59@hotmail.com

Anne

We attend a public Alternative school in our district. My school principal states that it is NOT the school’s legal obligation to provide a ‘continuum of services’, but the district’s. Therefore, a student can be transferred to another school to receive services. This has resulted in multiple students being in essence removed from this school under the name of ‘location’. Is it the school’s or district’s responsibility to provide services?

Sheena

I hope there is an answer to this soon as I am facing the same issue.

Chuck

It is ultimately the district’s responsibility. However, IDEA does require the district to try to keep the child at their home campus. Your state parent training & information center can assist you in dealing with this. http://www.parentcenterhub.org/find-your-center

Anne

If ‘A continuum of services’ includes a special school, yet the recent decision ruling against GA in having these special schools, how am I to know which way to advocate?

Linda

My son is in 6th grade and it does not feel that his IEP is being implemented and is considerably behind. Next meeting is at the end of February . If ESE only classroom is recommended by the team, Can I ask for more services inside the general education classroom until the end of the school year and then start the new ESE classroom next school year. He is in middle school which means all his classes will have to be changed. It would be a huge deal to him. It took him a while to get used to teachers, friends and classroom routines

Jamie

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.

Morning

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.

Jean

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!

Karen

Comment on the ‘show me the data’ . Though this post is years old. I feel this is ONE of the many areas that parents forget to request. When parent do request data, it becomes a number of excuses or ignored request. This has been the most challenging piece . Enforce . Show me HOW student will meet the goals . Step by Step.
Still we have no data. Just excuses. It was in our favor that 90% of the district special ed. staff left. Wonder if that was due to the increased liability last year.
With in one hour of our 9 IEP meeting (ready to file due process), 1 week before the start of his 11th year, New director agreed to private placement. However, we still do not have an IEP that makes any sense . IT is far from measurable. He is behind TWO years of learning, transition skills.

Ardi

I’l add to this old post. I personally cannot wait to ask to see some data. He has benchmark/present levels for goals that were not even taught during the year.