Special Education
Law Quarterly
January 2002
Bulletin #4
Change of Placement: Is it or isn’t it? Guidelines
for Special Educators
I. Introduction
The Individualized Educational Program (IEP) process is one of the hallmarks of the Individuals
with Disabilities Education Act (IDEA) and the written document that results must include the
services needed by the individual student to ensure that he or she receives a free appropriate
public education (FAPE). Special educators write IEPs for students with disabilities
throughout the school year. Some of these IEPs are for new students to the district or
students newly identified as eligible for special education. In other cases, an IEP completed
at the end of the previous school year may have to be rewritten to reflect changes in a
student's disability, information provided by the family, and/or the district's professional
judgment concerning the services appropriate for the child. The law is quite specific about
the requirements of the IEP and very clear that only after the IEP is written is the placement
of the student determined. This ensures that another hallmark of the IDEA—services provided
in the least restrictive environment (LRE)—is also followed. In other words, the services
necessary in order to provide an individual student FAPE must be determined first and
documented on the IEP; then the educational placement decision that provides the LRE is
made based on the IEP.
Unfortunately, it is not uncommon for school districts to determine the placement of a
student first and then design the IEP around the placement. Although both the IEP contents
and the placement decision can be made at the same time, they are different aspects of the
special education decision-making process. Parents have the right to procedural safeguards
when placement decisions are made and can request a due process hearing when they
disagree with a decision made by the district. Districts that make placement decisions prior
to the completion of the IEP or do not have a continuum of alternative placements available
will likely lose at a due process hearing and/or in court as both are contrary to the IDEA.
1
Another legal pitfall for special educators in placement decisions is failing to recognize that
certain school district actions--e.g., graduation or expulsion of a student—are changes in the
child's educational placement. This is important because any "change of placement" triggers
extensive due process protections for the parent and student. These procedural protections
include prior written notice to parents and application of the “stay-put” provision if parents
disagree with the placement choice of the district. If a district does not provide the
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Special Ed Law Quarterly, Bulletin #4
procedural protections when it institutes a "change of placement," the district has denied the
child and his or her family their rights as guaranteed under IDEA.
This Special Education Law Quarterly reviews the statutory and regulatory requirements
under IDEA concerning "change of placement" as well as the important court decisions in this
area. References to relevant Washington State law is included. Finally, guidelines for special
educators in determining whether an action is a change in educational placement under the
law are also provided.
NOTE TO THE READER
It is important to remember that throughout this bulletin the phrase "change of placement" is used
as a legal term of art. This means that "change of placement" has been defined by special
education law, specifically to mean actions taken by a school district, that must be accompanied
by certain due process protections. The phrase does not necessarily include the commonly
understood meaning--i.e., "change of placement" under IDEA may not be all changes in the location
services are provided; on the other hand, some changes to a student's IEP that do not involve a
physical change may be "change of placement" under the law. It sounds confusing, but read further
before throwing your hands up in despair.
II. Legal Nuts and Bolts
Although this bulletin focuses on "change of placement," a brief review of the general
placement guidelines from IDEA will provide useful background to understanding the specific
obligations when a change occurs. For a more detailed discussion of placement, the reader is
encouraged to check the Office of the Superintendent of Public Instruction (OSPI) website for
additional resources:
http://www.k12.wa.us/specialed/
IDEA requires that each special education placement be reviewed annually, based on the
student’s IEP and, therefore, decided on a case by-case basis. The law is clear that the
placement decision cannot be based "on factors such as the category of disability,
configuration of the service delivery system, availability of staff, or administrative
2
convenience." The placement must be in the school or facility as close as possible to the
child's home and the child should attend the school that he or she would have attended if not
disabled unless the child cannot receive the services specified on the IEP in that location.
As stated above, determining a student’s placement should be based on the specific needs of
the student as described in the IEP. In addition, the regulations to the IDEA require that a
"continuum of alternative placements" must exist to meet the needs of all students with
3
disabilities. The continuum must offer a variety of placement options ranging from a general
education environment to a private residential facility and also must include homebound
services. The IDEA does, however, start with the premise that all students will be served in
the general education environment. If a child cannot be provided appropriate services—those
necessary to ensure FAPE—full time in the general education environment, he or she must be
4
5
removed "only to the extent necessary to provide special education and related services."
Although the IDEA does not specifically require that parents be given notice of the continuum
of placement options available, the Office of Special Education Programs (OSEP), which is the
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Special Ed Law Quarterly, Bulletin #4
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administrative agency charged by Congress to monitor compliance with the IDEA, has stated
that when parents are first notified that their child has been identified as disabled, they must
also be informed of the placement options available in the district.
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Notice to Parents
Under federal and state law, districts must provide parents with written notice a reasonable
time prior to any proposal--or refusal--to initiate or change the identification, evaluation or
7
educational placement of the child or the provision of FAPE. It is this procedural requirement
to give written notice prior to any change of educational placement that creates the "change
of placement" dilemmas for special educators. The requirement that written prior notice
must be given before any "change" is clear. However, “change” is not defined anywhere in the
statute or regulations to IDEA; therefore, it is left up to the administrative agencies and
courts to define the parameters of the term for purposes of district responsibility to provide
prior notice. The administrative and judicial guidance on prior notice in "change of
placement" is reviewed later in the bulletin. See Section III.
Prior written notice to parents is required at the point the IEP team has made a decision as to
the appropriate placement for a child. This notice requirement exists even though the
parents have the right to participate in placement decisions and should have been involved in
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the consideration of options. In order to provide parents with the opportunity to participate
fully in the educational program provided their child, the notice must provide enough
information for the parents to understand why the school has decided the particular
placement is the LRE in which the child can receive FAPE as described on the IEP. Under the
regulations, the notice must include, at a minimum, identification of the setting selected,
alternative settings that were considered and an explanation of why the proposed option--as
9
opposed to the alternatives--was selected. This information should give parents enough
information to decide whether they agree or not with the school's decision and whether they
will exercise their rights to a due process review. Although complete information is required,
courts have agreed that there is a limit to the amount of disclosure and rationale that must
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be provided to parents. It other words, districts are obligated to communicate the factors
that contributed to the placement decision, but every professional conversation with
colleagues on the pros and cons of certain placements and other detailed process information
is not required--at least in some judges' opinion. OSPI has created model state special
education forms that include an example of what should be addressed/included in the prior
written notice. These model state forms are available on the web at:
http://www.k12.wa.us/specialed/document.asp
In 1994, the Ninth Circuit Court of Appeals ruled that a school district is obligated under IDEA
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to offer one placement to parents rather than several. The court held that to offer more
than one placement burdened the parents with the responsibility to eliminate potentially
inappropriate placements and made it too difficult to determine whether the options should
be challenged. Discussion between school staff and parents is appropriate according to this
court, but ultimately it was the duty of the district to offer one placement from among the
various options. Because in this case the district did not offer a placement, the court ruled
that the student was
Copyright © 2005 by University of Washington.
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Special Ed Law Quarterly, Bulletin #4
denied FAPE. A more recent district level case from California has cited this earlier circuit
court decision to hold that the district had denied a student FAPE because it had offered
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multiple options for the parents to consider. These cases are mentioned because they are
controlling law in Washington State. Therefore, in Washington, although discussion between
district personnel and parents is part of the decision making process, ultimately the district
must offer a placement for the parents to consider rather than a range of options to choose
from.
Stay-Put Provision
In addition to the prior written notice requirement, the IDEA also states that if parents
complain about the educational placement proposed for their child, the child’s current
placement cannot be changed while proceedings are on-going, unless the parents and school
district agree to a change. The specific language of this "statusquo or stay-put" provision is as
follows:
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During the pendency of any proceeding . . . unless the State or local educational agency and the parents or
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guardian otherwise agree, the child shall remain in the then-current educational placement of such child . . .
The "stay-put" provision is not activated simply because parents are unhappy with the
placement offered by the district; rather, parents must formally request a reconsideration
through the due process proceedings available to them under IDEA, such as an administrative
complaint to the state Department of Education (OSPI). WAC 392-172-324 through 364.
http://www.mrsc.org/nxt/gateway.dll?f=templates& fn=legpage.htm$vid=rcwwac:leg
Generally the "then-current" placement is the placement of the student at the time the
complaint is filed. If the student's initial public placement or program is the focus of the
dispute, theoretically there is no "then-current" placement. The regulations require both that
1) the student receive an education at public expense and that 2) the student, with parents’
consent, be "placed in the public school until the completion of all proceedings." In order to
fulfill both these mandates, when a student is found eligible for special education services,
but parents do not consent to the initial placement, the student should be served in the
regular educational program until the issue can be resolved rather than remain out of school
completely. OSEP has stated that for a child transitioning from IDEA Part C (birth to three
early intervention services) to Part B (primary and secondary school), this regulation is also
applicable. In other words, the child with consent of his or her parents must be served in the
public preschool program, pending resolution of the dispute, rather than staying in the last
placement of the early intervention program.
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Sometimes, however, the disputed placement ceases to exist or is clearly not an appropriate
option for the child. In these cases, identifying the "stay-put" placement is complicated. As
allowed by the IDEA, parents and school personnel can come to some agreement about an
alternative placement while proceedings are progressing. These placements are known as
interim placements. (NOTE: interim placements are not interim alternative educational
settings (IAES) referred to in discipline situations). When agreement can be reached about
where the child's needs will be met on even a temporary basis, an interim placement is
appropriate. However, these placements can create problems for school districts if the
temporary and time-limited nature of them is not clarified with the parents of the child.
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Special Ed Law Quarterly, Bulletin #4
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Interim placements are discussed further under Section III. See Section III - Interim
Placements.
The "stay-put" provision is, in essence, an automatic preliminary injunction. This means that
a school district cannot unilaterally change a student's program or placement pending the
resolution of any due process or judicial action concerning the student's program or
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placement. No court order is required; it is automatic. The intent of this provision is to
maintain stability and continuity for the student until the dispute between parents and school
17
personnel is resolved. When the then current placement is clearly inappropriate for the
student and no interim agreement can be reached, the student suffers. This is particularly
difficult for all parties when the student's behavior is dangerous to him or herself and/or
others and the district attempts to change the placement in an effort to address the
behaviors. The 1997 amendments to the IDEA have attempted to address the stay-put
provision in relation to behaviorally disabled students and the application of the stay-put
provision to discipline issues is addressed later in this bulletin.
See Section III - Disciplinary Actions that Constitute Change of Placement.
III. Are They or Aren’t They? Specific Change of
Placement Issues
School district staff may become confused about what actions constitute a "change of
placement" triggering the due process protections mandated in IDEA because there is not a
definite list of actions that do so. For example, in some cases--but not all--a change of
classroom will be a "change of placement." The courts have been asked to clarify the
definition of "change of placement" and some of the relevant cases are described below.
However, probably the most helpful guidelines have been provided by OSEP in a policy letter
issued in response to a state educational agency inquiry. According to OSEP, the determining
factors can be summed up in the phrase "substantially and materially changes" the
individualized educational program. Given that standard, not every action affecting the IEP
will constitute a "change of placement," although many will. The OSEP letter is discussed in
more detail in the following section.
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As stated earlier, if a school district action is not a "change of placement" under the law, the
due process protections for parents and students are not triggered. However, parents have a
right to stay informed on school district actions regarding their child whether or not the
panoply of procedural rights are required. Further, parents are considered a part of both the
IEP and placement teams and should always be involved in placement decisions. Therefore,
the best practice--and one that is in the spirit of collaboration--is to inform parents of
changes that occur regardless of whether they are legally “changes of placement” or not.
Although there will always be new scenarios that will challenge the special educator as to
whether a specific action is a "change of placement" that requires the due process protections
as described above, the following issues are common.
Change of Location vs. Change of Placement
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Special Ed Law Quarterly, Bulletin #4
The IDEA itself--i.e., the federal law--does not require that the placement decision for a
particular child be included on the IEP. However, Washington State requires that "the
frequency, location, and duration" of the services provided the student be included on the
IEP. Therefore in this state, because the location where services will be provided must be
written on the IEP, the placement decision is documented. Whether the location is written
on the IEP or not, the question is whether a change in the physical location in which an IEP
service is implemented--i.e., classroom, school, program--constitute a "change of placement"
as understood in the law?
19
Generally, unless there is a change in the services provided, a location change is not a change
in placement under IDEA. However, even if the IEP services remain the same, a "change of
placement" may occur if the move implicates LRE issues because the child's opportunity to
interact with non-disabled peers is changed. In other words, the new location falls
somewhere different on the continuum of placement options from the initial placement. In
order to keep all of this straight, the task is to distinguish between a "change in location" and
a "change in placement." Remember, only actions that constitute a "change of placement" as
understood in the law trigger the prior written notice requirements of the regulations and the
stay-put provision.
20
The OSEP letter referred to above was written in 1994 in response to an inquiry from the
Tennessee State Department of Education Assistant Commissioner. He asked four specific
questions concerning Tennessee's obligations when a school site was closed and the special
education students’ placement had to change. The lengthy agency response provides useful
guidance for school districts when deciding whether certain actions are changes of
placement.
According to OSEP, a "change of placement" is considered to be an action that substantially or
materially alters an educational program. A change only in the physical location of the
program does not constitute a "change of placement." The guidance from OSEP applies the
following factors in determining whether this "substantially or materially alters" standard is
met:
1) The IEP is being revised concurrently;
2) the student will be educated with non-disabled peers to the same extent;
3) the student will have the same opportunities to participate in extracurricular and
nonacademic services; and
4) the new location is the same option on the continuum of alternative placements.
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If all these factors are satisfied in a particular case, there probably has not been a substantial
or material alteration in the program, and no "change of placement" has occurred. OSEP
reiterated that as with all aspects of the IDEA, the determination as to whether a "change of
placement" substantially or materially alters an educational program must be made on an
individual basis.
An interesting court decision that illustrates judicial analysis of "change of location" vs.
"change of placement" debates is Sherri A.D. v. Kirby, a Fifth Circuit Court of Appeals
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decision. In Sherri A.D., the issue was whether the transfer of Sherri from the Texas School
for the Blind to a community based placement with the same program triggered the stay-put
provisions of the IDEA. The court ruled that without a fundamental change in or elimination of
a basic element of a student's IEP, there was no "change of placement" and the concomitant
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #4
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rights afforded parents. This court went on to state that placement is "not a place, but a
program of services from which the child can obtain some educational benefit." Because the
educational program provided the student did not change with the change of physical
location, there was no "change of placement" in the legal sense.
23
School or Classroom Closures
It is not uncommon to change the location where a student receives his or her educational
services for reasons unrelated to the substance of the student's program. Examples include
such things as budgetary cuts that alter programs available in a district, closure of schools for
construction and/or safety reasons, or the addition of new programs. For example, if a
special education classroom is closed because of administrative restructuring and a student
served in a self-contained special education classroom moves to a general education
classroom; is this a "change of placement?”
Concerned Parents & Citizens for the Continuing Education at Malcolm X. v. New York City
Board of Education is one of the leading court cases on "change of placement" under IDEA
and concerns a school closure. In this case, the New York City School District closed an
elementary school that had provided services to 185 special education students. These
students obviously had to be "relocated" but the Circuit Court ruled that the transfer of these
students was not a "change of placement" under the IDEA. Rather the court stated that the
term "educational placement" meant "only . . . the general education program in which the
handicapped child is placed and not . . . all the various adjustments in that program that the
educational agency, in its discretion, may determine to be necessary." Further the court
ruled that although the new schools did not offer the students the "extremely innovative
educational program" of the previous school, the due process rights of parents under "change
of placement" were not implicated.
24
OSEP has also addressed the application of the "stay-put provision” when a school is closed.
According to OSEP,
[W]hen the facility ceases to operate, the[district] is not required to maintain a student's placement there in
the absence of an agreed-upon interim placement. In such cases, the [district] is required to maintain the
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child in an educational program that is substantially and materially similar to the former placement.
Change of Staff Providing Services
In addition to school closures or the elimination of classrooms, the professional and
paraprofessional educators who provide services to students with disabilities frequently
change. Does a change in the staff person providing services on an IEP constitute a "change of
placement" that requires prior notice to the parents?
The general answer to this question is no. If a service or aspect of the service is not included
in the IEP, it is not usually considered an item of educational programming or placement for
26
purposes of due process protections. Tuscaloosa Country Board of Education illustrates this
standard. In that case, a hearing officer ruled that a board's change in personnel and
methodology used to provide therapy to a student with autism did not result in a change on
the IEP and therefore, was not subject to due process protections.
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Special Ed Law Quarterly, Bulletin #4
In a case closer to home, the Ninth Circuit Court of Appeals ruled that hiring an aide to
observe a student in the Puyallup School District because of the student’s behavioral
disabilities was not a “change of placement” even though the services of an aide were not
included on the student’s IEP. The parents had taken the position that because they were
not told of the hiring, which they argued was a "change of placement" under IDEA. Puyallup
had denied their rights to prior written notice.
27
OSEP has stated that once the placement team has decided on the appropriate placement for
a child which includes the facility or school the child will attend, "the assignment of a
particular classroom or teacher can be an administrative determination, provided that
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determination is in accord with the placement team's decision." Therefore, it is not the IEP
team's responsibility to choose the teacher or classroom; this can be an administrative
decision. The Washington State special education regulations do not specify that the provider
of services be listed on the IEP and therefore there is no federal or state obligation to name
the staff providing services indicated on the IEP. However, it should be noted that the OSPI
state forms do include space to write the "position(s) responsible for providing instruction"
and "position(s) responsible for monitoring progress" on the Summary of Services Matrix. This
suggests that OSPI considers the specific position--if not the named individual--to be an
important part of the record.
29
http://www.k12.wa.us/specialed/document .asp.
Change in Amount or Type of Services in IEP
How do the courts interpret a change in the amount of services offered in a student’s IEP? For
example, if an IEP states that a student will receive 10 hours of classroom instruction in math
each week, does a change to 5 hours or even 2 hours a week of math instruction constitute a
"change of placement" triggering the due process protections?
There are numerous cases in which the judges were asked to rule on whether various changes
in the amount or type of service provided for a student constituted a "change of placement",
including one that involves a change in the hours of instruction provided as well as the
location the instruction was provided. In that case, Donig v. Bd. Of Education of Rochester
Schools, the initial IEP included 13 hours of classroom-based instruction and 30-40 hours of
home based DTT instruction for a child with autism. The district changed the services to 27.5
hours of TEACH instruction, which basically doubled her time in the classroom. This court
ruled this modification was not a "change of placement. "The court stated that whether the
action was a "change of placement" or not depended on the importance of the modification
and whether it is likely to affect the child’s learning experience in some way. In this case,
the court stated that the child “would attend the same school, the same program, and have
the same teacher and staff working with her.” Therefore, no "change of placement" had
occurred.
30
31
In a case from Texas, parents brought a due process complaint that included a denial of their
right to prior written notice before their son’s short term objectives on the IEP were
changed. The Fifth Circuit Court of Appeals held that the objectives were not “changed,”
rather they were discontinued when the student mastered them and therefore, no "change of
placement" had occurred. Other cases in which the court ruled that no "change of placement"
occurred included the modification in the feeding program that a student would receive on
moving from a private hospital setting to an institutional setting, and a change in the method
32
33
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #4
Page 9 of 16
of transportation of a child to and from school from reimbursed transportation by the parent
to a “combined run” that involved other students and a small increase in travel time.
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These cases are included to give the reader a sense of the numerous types of changes to a
student’s program that can occur yet not reach the legal standard—substantially and
materially alters the educational program—to constitute a "change of placement." Given the
case law, a parent would have a tough task to convince the court that a change from 10 hours
to 5 hours was a "change of placement" although a change to only 1 hour a week might be
sufficient to substantially and materially alter the program. It would ultimately be a question
of proof.
Change of Data Collection Methods
If a student is moved from a self-contained classroom to the general education classroom,
regardless of the actual location and staff changes, does the fact that the data collection
methods on the student's progress changes constitute a "change of placement"?
OSPI was asked this question and responded in the negative. The IDEA does require that all
special education students have annual goals clearly delineated on the IEP and short-term
objectives to meet those goals. In addition, the IEP must specify how and how often progress
will be reported to parents. However, the IDEA does not require that the data collection
method itself be written in the IEP. Therefore, any change in data collection methods
necessitated by the change of venue from self-contained to general education classroom,
does not constitute a "change of placement."
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Disciplinary Actions that Constitute Change of Placement
The 1997 amendments to IDEA included several significant modifications to “change of
placement” rules in the area of discipline. In order to make sense of these disciplinary rules,
it helps to review the 1988 United States Supreme Court decision Honig v. Doe. Honig
involved the proposed expulsion of two students with emotional disabilities. Both students
were suspended from school for their behavior and the school district recommended
expulsion. The students' argued that expulsion was a "change of placement" and therefore
their due process procedural right of stay-put was triggered. In addition they stated that they
could not be expelled for behavior related to their disability. The lower court and the Ninth
Circuit Court of Appeals agreed with these arguments and ruled that the school district could
not expel a special education student regardless of the danger presented by the student. The
California State Education Association appealed to the United States Supreme Court.
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Although the Supreme Court agreed that IDEA did not allow districts to unilaterally exclude
students with disabilities and refused to allow a "dangerousness exception" to this rule, the
Justices also stated that this did not leave schools without any recourse. Schools were not
allowed to change a student's placement during proceedings, but this rule did not prevent
them from implementing normal disciplinary actions for dealing with students with
disabilities. Any normal disciplinary procedure--such as timeout, detention, or suspension for
up to 10 days—used for other students was allowed and dangerous students could be removed
37
using these procedures. This period of time would, in the Supreme Court's opinion, be
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Special Ed Law Quarterly, Bulletin #4
enough to hold an IEP meeting and try to negotiate an interim placement with the parents. If
no agreement could be reached, and a student was dangerous and could not safely be
returned to the previous placement, the school could turn to the courts for an injunction
preventing the student from returning. This became known as the Honig injunction. This does
create a "dangerousness exception," but it is one that the courts, not the schools, must make
under the Supreme Court ruling. For a good summary of discipline rules under IDEA see the
OSPI technical assistance paper "The Individuals with Disabilities Education Act: Discipline
Procedures Under IDEA Regulations.
http://www.k12.wa.us/specialed/tap/TAP2.pdf
School districts struggled with the Honig ruling in the years following the decision; many felt
that the requirement that they get a court order to remove a dangerous student if parents
filed a due process complaint, limited their ability to maintain a safe environment for staff
and student. The first significant change to the IDEA in this area was the Jeffords Amendment
passed by Congress in 1994. This amendment allowed school district personnel to unilaterally
place students who bring guns to school to interim alternative educational settings (IAES) for
up to 45 days. The 1997 Amendments extend this authority to place students who bring other
dangerous weapons and to those in possession of illegal drugs and those who sell or solicit the
sales of controlled substances.38 Schools cannot under the amendments unilaterally remove a
dangerous student who does not meet one of the criteria above; however, the amendments
do allow a hearing officer—rather than the court only—to remove a student up to 45 days if
keeping the student in the “then-current” placement is “substantially likely to result in injury
to the child or others.”39
If parents disagree with the interim alternative educational setting selected by the school or
hearing officer, they can file a due process complaint. However, the “stay-put” placement is
the interim setting not the previous placement until a final decision or the expiration of the
placement unless parents and district agree otherwise.40 In essence this creates an
exception to the “stay-put” procedural right for students who are dangerous, carry dangerous
weapons or are involved in drug use and/or sale.
In addition to the extension of the interim alternative educational setting option, the
amendments incorporated the Honig decision and OSEP policies on disciplinary actions. The
amendments restate that school districts may remove a child for up to 10 days at a time for a
violation of school rules if there is no pattern in these removals. Such disciplinary action is
not a "change of placement" under IDEA. However, a "change of placement" does occur if a
student is removed for more than 10 consecutive days or is subject to a series of removal that
constitute a pattern. A pattern is demonstrated when the total number of days removed is
more than 10 in a school year even though they are not consistent days and factors such as
length of each removal, total amount of days and proximity of the removals are considered.
Washington State special education regulations also were revised after the 1997 amendments
to IDEA to follow the federal definition of "change of placement" in disciplinary actions.41
Graduation as a Change of Placement
It would seem simple logic that if “change of placement” is an action that substantially or
materially changes the educational programming of the student, graduation--the cessation of
educational programming--would be a "change of placement." However, until the 1997
Amendments to the IDEA, the question of whether graduation from special education was a
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Special Ed Law Quarterly, Bulletin #4
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"change of placement" was debated extensively. It is now clear from the law that graduation
with a regular high school diploma is a "change of placement" and therefore requires written
prior notice in accordance with the regulations. As with all "change of placement" decisions,
parents have the opportunity to challenge the decision that their child is ready for
graduation. And in some cases, the student may in fact be an adult and therefore have
independent rights to challenge the graduation him or herself.
42
The new regulations still do not specifically address graduation from high school with a
certificate of mastery or some other kind of alternative diploma. Because the language so
clearly states that graduation with a regular high school diploma does constitute a "change of
placement, "the implication is that any other documentation is not a "change of placement"
and prior written notice is not required. The Department of Education discussions regarding
the final regulations published in the federal register, further support this conclusion with the
statement that “exiting or graduating . . . with a credential that is different from the diploma
granted . . . does not end an individual's eligibility for Part B services and is not a change in
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placement requiring notice.” In essence, a student’s right to FAPE does not terminate when
the “graduation” is acknowledged with something other than the school’s diploma.
Interim Placements
Interim placements--those that are agreed to by parents and schools while due process
procedures are underway to determine the appropriate "permanent" placement--are often a
successful solution to a difficult situation. In order to ensure that a student does not suffer
because of the disagreements between adults, a school will sometimes agree to fund a
temporary placement that the parents choose. While this can be the ideal solution and the
best for all involved, it may create tensions if all parties are not communicating the intent of
the placement. For example, although the school staff may be clear that this is a temporary
placement only--i.e., until the dispute is resolved--the parents may think otherwise and
consider this the new permanent placement.
Just such a situation occurred in an Oklahoma School District where following the filing of a
due process request by the parents, the school agreed to fund a placement for their child in a
44
private school for 2 years. The settlement agreement appeared to be definite about the
number of years and the funding limitations. However, when the school stopped paying the
tuition following the second year, the parents filed a due process hearing and argued under
the stay-put provision for their child to remain in the private placement. The court that
ultimately heard the dispute agreed with the parents, issuing an injunction ordering the
school to continue funding the private placement while the issue was in due process
proceedings because it ruled the private school was the "then current" placement.
On review of the settlement agreement between the parents and the school district, the
court seemed to think that the document lacked sufficient clarity on two points: 1) that the
placement was not intended to extend past the second year and 2) there was no other
placement specified following the second year. Other case law supports the need for school
districts to make their intentions in any interim placement explicit or the interim placement
may be the “then-current” placement under the stay-put provision.
45
Copyright © 2005 by University of Washington.
Page 12 of 16
Special Ed Law Quarterly, Bulletin #4
IV. A Challenge for Special Educators
There is no question that deciding whether certain special education actions constitute a
legal “change of placement” is not always simple. However, it is an important decision
because of the procedural due process protections for parents and students that are triggered
as a result, including the affirmative duty of districts to provide prior written notice before
any "change of placement" occurs. The following guidelines may assist in resolving the
question of whether it is or isn’t a "change of placement” under the IDEA:
1) Congress always intended special education to be a collaborative effort between
educators and parents and the most recent amendments to the IDEA have strengthened
the parental role in programmatic and placement discussions. If a school district action is
a "change of placement," the law is clear on the right of parents to have prior written
notice before the change occurs and the right to have the child stay-put in the "thencurrent placement" if they disagree with the placement.
2) The one exception to the stay-put provision is if the child brings a weapon, possesses illicit
drugs, and/or is a danger to him/herself or others. Either the school district can
unilaterally place such a student in an interim alternative educational setting (weapons or
drugs) or a hearing officer of the courts can do so (dangerous student).
3) However, even if the action is not technically--i.e. legally--a "change of placement" that
triggers the due process protections, parents need to be informed of changes in their
child's school experiences whether that is a different teacher or a change in classroom or
schedule. Remember special education is collaborative and that means communication
with parents is vital.
4) As a general rule, a change of location of a student’s program ONLY, without a change in
the educational program, is not a "change of placement" and prior written notice to
parents is not legally required.
5) Any action that involves a substantial and material alteration in the educational program is
considered a "change of placement" under the IDEA. A change of some service on the IEP is
more likely (although not always) to be a "change of placement" than a modification of
some element of the program that is not on the IEP—i.e., specific staff providing services.
6) A Parents often think that once an IEP has been agreed upon there will be no
modifications unless they are informed and concur prior to those changes occurring.
Although the IDEA certainly envisions that parents and educators will be communicating
regularly in a collaborative effort to provide FAPE to the student, does this mean that a
school can never change an IEP without notifying parents and holding an IEP meeting? No.
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #4
Page 13 of 16
IEP modifications that do not "substantially and materially" change the program provided
for the student can be made by the school without triggering the due process protections.
However, as noted above, it would be best practice to always inform parents.
7) The determination of whether a "change of placement" has occurred or not is a case-bycase decision; each student's situation must be considered individually and independently
in order to make the decision.
8) If an interim placement is agreed upon between school staff and parents, be sure that the
agreement is explicit in the length of the placement, the actions to be taken during the
interim placement to resolve the dispute, etc.
V. Test Your Knowledge on "Change of Placement"
Special educators need to understand what constitutes a "change of placement" under IDEA
and Washington State special education law because parents and students have a right to
certain due process protections when changes occur. This bulletin has discussed the
guidelines that the courts and administrative agencies have given on this issue and now it is
time for the reader to challenge him or herself with the specific questions that follow. Check
your answers by clicking on the link below each question that will take you back to the
material in the bulletin that addresses the question. Good luck.
1) What is the difference between a "change of location" and a "change of placement"?
Are They or Aren’t They: Change of Location vs. Change of Placement
2) What does a special educator have to do if an action is a "change of placement"?
Legal Nuts and Bolts: Notice to Parents
3) If a "change of placement" is suggested to parents, and they file a complaint with OSPI
about the proposed change, what happens to the proposed change?
Legal Nuts and Bolts: Stay-Put Provision
4) Does a change in the goals on an IEP create a "change of placement" under IDEA?
Are They or Aren’t They: Change of Location vs. Change of Placement
5) Does a change in the services provided on an IEP create a "change of placement"?
Are They or Aren’t They: Change in Amount or Type of Services in IEP
6) Does a change in the staff person providing services on an IEP constitute a "change of
placement"?
Are They or Aren’t They: Change of Staff Providing Services
th
7) If classrooms are consolidated--e.g., instead of three 5 grade self-contained classrooms,
the district creates two larger classrooms--is that a "change of placement"?
Are They or Aren’t They: School or Classroom Closures
Copyright © 2005 by University of Washington.
Page 14 of 16
Special Ed Law Quarterly, Bulletin #4
8) When a special education student graduates from school with an alternative diploma, is
that a "change of placement"?
Are They or Aren’t They: Graduation as a Change of Placement
9) When a student is moved from a self-contained classroom into a regular education
classroom with the same services provided in new location, is that a "change of
placement"?
Are They or Aren’t They: Change of Location vs. Change of Placement
What's Happening in Special Education Law
WEA Special Education Law Classes:
http://www.wa.nea.org/prf_dv/schd_cls/classes.htm
Special Education Advocate, is a free online special education law newsletter. To subscribe:
http://www.wrightslaw.com/subscribe.htm
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2
3
4
5
6
7
8
9
See, e.g., Spielberg v. Henrico County Public Schools (1988).
Letter to Fisher, 21 IDELR 992 (OSEP 1994).
20 U.S.C. §1412(a)(5); 34 C.F.R. §300.551 Washington Administrative Code 392-172-174.
Id.
Id.
Letter to New, EHLR 211:383 (OSEP 1986).
34 C.F.R. §300.503(a)(i)(ii). Washington Administrative Code 392-172-302.
34 CFR §300.552(a)(1).
34 CFR §300.503(b); Washington Administrative Code 392-172-306.
10
Smith v. Squillacote, 19 IDELR 265 (D.D.C. 1992); Kroot v. District of Columbia, 19 IDELR 378 (D.D.C.
1992).
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12
13
14
15
16
Union School District v. Smith, 15 F.3d 1519 (Cir. 1994).
Glendale Unified School District v. Almasi, 122 F. Supp. 2d 1093 (C.D. Cal.2000).
20 U.S.C. §1415(b)(3)(A)(B); Washington Administrative Code 392-172-364.
34 CFR §300.513.
34 CFR §300.514(b).
It should be noted that at least one court has stated that the stay-put provision applies through the
trial court level but does not apply to the appellate level. Anderson v. District of Columbia, 877 F.2d
1018 (D.C. 1989).
17
rd
Gorn, S. The Answer Book on Special Education Law (3 ed.). LRP Publications (1996).
Copyright © 2005 by University of Washington.
Special Ed Law Quarterly, Bulletin #4
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19
20
21
Page 15 of 16
Letter to Fisher, 21 IDELR 992 (OSEP 1994).
WAC 392-172-160(f).
34 CFR §300.553; 34 CFR §300.507.
Letter to Fisher, 21 IDELR 992 (OSEP 1994); Letter
to Green, 22 IDELR 639 (OSEP 1995).
22
23
24
25
26
27
28
29
th
19 IDELR 339 (5 Cir. 1992).
Id.
629 F.2d 751 (2
nd
Cir. 1980).
Letter to Fisher, 21 IDELR 992 (OSEP 1994).
21 IDELR 826 (SEA Ala. 1994).
th
Clyde K. v. Puyallup School District No. 3, 35 F.3d 1396 at 1399 (9 Cir. 1994).
Letter to Fisher, 21 IDELR 992 (OSEP 1994).
Washington Administrative Code 392-172-160.
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31
32
33
197 F.3rd 793 (6th Circ. 1999).
Id. at 802.
th
Buser by Buser v. Corpus Christi Independent School, 51 F.3d 490 (5 Cir. 1995).
Lunceford v. District of Columbia Bd. Of Education,
745 F.2d 1577 (D.C.Cir. 1984).
34
DeLeon v. Susquehanna Community School District,
rd
747 F.2d 149 (3 Cir. 1984).
35
36
Letter from Pamela McPartland (OSPI) to Pat Steinburg (WEA) dated April 20, 2001 at 4.
479 U.S. 1084 (1988).
37
The Honig Court considered removal from school for up to 10 consecutive school days to be the
maximum amount allowed before the student was owed greater due process protection; in essence, a
suspension of 10 days was considered minimally punitive. When a student receives repeated
suspensions for up to or less than 10 days during a school year, the courts will examine the facts to
determine whether each of these suspensions stands alone--and does not trigger due process
protections--or whether cumulatively there has been a change of placement.
38
39
20 U.S.C. §1415(k)(i) Washington Administrative Code 392-172-37510.
20 U.S.C. §1415(k)(2)(A) Washington Administrative Code 392-172-379.
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41
42
43
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34 CFR §300.526(a); Washington Administrative Code 392-172-38405.
Washington Administrative Code 392-172-373;37500.
34 CFR §300.122(a)(3)(iii).
64 Fed. Reg. 12556 (1999).
938 F.Supp. 758 (N.D. Okla. 1996).
Copyright © 2005 by University of Washington.
Page 16 of 16
Special Ed Law Quarterly, Bulletin #4
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Jacobsen v. District of Columbia Board of Education, 564 F.Supp. 166 (D.D.C. 1983), Saleh v. The
District of Columbia, 660 F.Supp. 212, (D.D.C. 1987), Evans v. The Board of the Rhinebeck Central
School District, 921 F.Supp. 1184 (S.D.N.Y. 1996), Zvi D. v. Ambach, 694 F.2d 904 (2
Copyright © 2005 by University of Washington.
nd
Cir. 1982).