Dr. David Stewart, State Superintendent of Schools
Building 6, 1900 Kanawha Blvd. E.
Charleston, West Virginia 25305-0330
Phone: 304-558-2681
Fax: 304-558-0048
http://wvde.state.wv.us
March 25, 2005
Susan Given
West Virginia Advocates
Litton Building, 4th Floor
1207 Quarrier Street
Charleston, WV 25301-1842
AMENDED
Letter of Clarification: FY-05-04
Discipline – Change of Placement, IAES, Evaluations
Changes indicated in bold
Dear Ms. Given:
This correspondence is in response to questions you raised regarding the decisions local
education agencies (LEA) are making that you feel are not based upon Policy 2419: Regulations
for the Education of Exceptional Students. Your questions and the Office of Special Education’s
(OSE) responses are as follows:
Question 1:
“The IEP team, with parental agreement, may determine that a change in placement through the
IEP process rather than through these disciplinary procedures is needed. If a parent does not
agree with a change of placement, what is the next step for the LEA? If the LEA changes the
placement without parental agreement or without going through the disciplinary procedures, is
that a violation of Policy 2419? Can a LEA threaten a parent into agreeing to a change in
placement (e.g., ‘Agree to this change of placement or we are filing a juvenile petition’)?”
Response:
In accordance with Policy 2419, Section 7.1.2, the IEP team, with parental agreement, may
determine that a change of placement through the IEP process, rather than through the
disciplinary procedures, is needed. However, if the parent disagrees with the change of
placement, the IEP team must provide the parent prior written notice of the district’s proposal in
accordance with Section 8.1.1. The parent may, upon receipt of the notice, request an expedited
due process hearing relevant to the IEP team’s change of placement in accordance with the
procedural safeguards specified in Section 7.1.5.
AMENDED Letter of Clarification FY05-04
March 25, 2005
Page 2
With regard to whether a district can “threaten” a parent into agreeing with the IEP team’s
decision to change the student’s placement, the most desirable outcome is for the IEP team to
reach consensus on the student’s placement. However, if consensus cannot be reached, the IEP
team may still determine that a change of placement for the student is needed, as neither
consensus nor parental consent is required to do so. Once more, the parent is entitled to prior
written notice and has the right to invoke his/her procedural safeguards by filing a due process
hearing and/or requesting mediation if the parent disagrees with an IEP team’s final placement
decision.
On the other hand, if a parent believes he/she has been threatened by an employee of a district,
the parent may contact the local board of education to report the incident and obtain information
pertaining to the districts’ procedures for responding to complaints regarding school employees.
Question 2:
“Can a LEA place a student receiving special education, whose behavior is a manifestation of
his/her disability, in an interim alternative education setting if weapons or drugs were not
involved? If so, what happens during the 45 days? What happens at the end of the 45 days?
What is the difference between an IAES and an out of school environment?”
Response:
No. The IEP team may only change a student’s placement to an interim alternative educational
setting (IAES) if a student with a disability carries a weapon or knowingly possesses or uses
illegal drugs or sells or solicits a controlled substance at school or a school function regardless
of whether the behavior is or is not a manifestation of a student’s disability.
With regard to the difference between an IAES and an Out-of-School Environment (OSE)
placement, the following is provided:
Out-of-School Environment (OSE) is one of the placement options delineated in Policy 2419,
Section 5.1.5.g. and is described as a placement wherein the student’s specially designed
instruction and related services are temporarily delivered in a non-school environment, such as a
public library, group home or mental health center. The decision-making process for determining
a student’s placement, including an OSE, is achieved by the IEP team through the sequential
development of the student’s IEP (e.g., present levels of educational performance, annual goals,
short-term objectives and special education and related services) and then by determining the
appropriate placement option in consideration of the requirements specified in Policy 2419,
Section 5.1.5.g-h.
AMENDED Letter of Clarification FY05-04
March 25, 2005
Page 3
An Interim Alternative Education Setting (IAES) for a student is also determined by an IEP team
but differs with regard to the following:

An IAES placement, as described in Policy 2419, Section 7.1.4, is limited to instances when a s

The IAES placement is considered a discipline measure that is subject to the procedures and prot

The IAES placement has time constraints and is limited to the same amount of time that a studen
Question 3:
“West Virginia Advocates is increasingly finding that LEAs are suspending students with
disabilities and demanding ‘safety psychologicals’ or ‘risk assessments’ before they return to
school. Could you please direct me to the site in Policy 2419 or the IDEA? How can this
information be used in deciding whether a student can return to school or not? What if a risk
assessment states a student is a minimal risk, yet the LEA still will not allow the student to return
to school? What qualifications must a psychologist have in order to perform this ‘safety
psychological’ or ‘risk assessment’?”
Response:
For eligible students with disabilities, the student’s IEP team is the decision-making team with
regard to identifying the student’s needs and how those needs will be met, whether through
additional evaluation, a revision of services and/or a change in placement. Specifically, it is the
IEP team’s decision to: 1) determine whether a student requires an additional evaluation and the
type and nature of the evaluation (e.g., safety psychological, risk assessment), 2) consider the
results and recommendations of the evaluations, including an independent education evaluation
and 3) review and revise, if appropriate, the student’s IEP (e.g., special education services and
placement, including the initiation and duration of the services and placement) in consideration
of the results.
AMENDED Letter of Clarification FY05-04
March 25, 2005
Page 4
Policy 2419, Section 5.1.5, and each districts’ policies and procedures provide further delineation
of the districts’ responsibilities in conducting additional evaluations. Specifically, the IEP team,
upon receipt of parental consent, must complete the evaluation and convene the IEP team to
consider the results of the evaluation within the timelines specified in the districts’ policies and
procedures, usually within sixty (60) days of receipt of parental consent. With regard to the
specific types of evaluations an IEP team may request, only the IEP team can determine the type
and/or nature of the requested evaluation(s). Please note that the completion of any additional
evaluation cannot prohibit or delay the provision of a free appropriate public education (FAPE)
(e.g., special education and related services) for an eligible student who has been removed from
school due to disciplinary reasons. Students who are removed from school for more than 10
days are entitled to the procedures and protections of Policy 2419, Sections 7.1.1 and 7.1.2,
regardless of any pending evaluation.
With regard to the qualifications a school psychologist must have in order to perform a “safety
psychological” or “risk assessment”, Policy 2419, Section 8.1.8.a. requires that any standardized
tests that are to be given to a student must be administered by trained and knowledgeable
personnel in accordance with any instructions provided by the producers of the tests.
If you have further questions regarding these issues or need additional information, please
contact Robin Bolling, Assistant Director, Dr. Frances Clark, Coordinator, or Lorraine
Ciambotti, Coordinator, Compliance Management at 558-2696 (V/TDD) or 1-800-642-8541.
Sincerely,
Lynn Boyer, Ph.D.
Executive Director
Office of Special Education
LB/lc/jy
AMENDED Clarification Memo FY-05-04