Maintaining a Continuum of Placement Options/LRE

Some districts require that all students be placed in the general education classroom. Many districts are telling teachers that all students in the resource room, or all students in the BD program, or all 4th graders, etc. must be placed in general education 100% of the time. A change in the amount of time a student qualified for special education spends in a special education classroom as opposed to a general education classroom constitutes a change of placement. Any such change of placement requires a reevaluation.

Placement decisions are made by the IEP team- WAC 392-172A-02060. The IEP team must be able to consider a full range of placement options for each student per WAC 392-172A-02055:

The continuum required in this section for eligible students kindergarten (including five year olds in kindergarten) through age twenty-one must:

a) Include the placements listed in the definition of special education services in WAC 392-172A-01175, such as instruction in general education classes, special education classes, special schools, home instruction, and instruction in hospitals and institutions; and

b) Make provision for supplementary services such as resource room or itinerant instruction to be provided in conjunction with general education classroom placement.

WAC 392-172A-02050 Least restrictive environment. While there is a legal preference to place students in general education environments to the maximum extent appropriate, that does not support district policies that require all students be placed in general education.

In 2017, the U.S. Supreme Court heard the Endrew v. Douglas County case. In an analysis of Endrew the US Dept. of Education states in Ques. 17, “ Consistent with the decision in Endrew F., the Department continues to recognize that it is essential to make individualized determinations about what constitutes appropriate instruction and services for each child with a disability and the placement in which that instruction and those services can be provided to the child. There is no “one-size-fits-all” approach to educating children with disabilities. Rather, placement decisions must be individualized and made consistent with a child’s IEP. (19) We note that placement in regular classes may not be the least restrictive placement for every child with a disability. The IDEA Part B regulations specify that each public agency must ensure that a continuum of alternative placements (including instruction in regular classes, special classes, special schools, home instruction, placement in private schools, and instruction in hospitals and institutions) is available to meet the needs of children with disabilities for special education and related services. (20)”

In Sacramento City Unified Sch. Dist. v. Rachel H.,14 F.3d 1398 (9th Cir. 1994) the 9th Circuit Court established a four part test to determine LRE. It states,

“In applying this test, we consider:

  1. the academic benefits of placement in a mainstream setting, with any supplementary aides and services that might be appropriate;
  2. the non-academic benefits of mainstream placement, such as language and behavior models provided by non-disabled students;
  3. the negative effects the student’s presence may have on the teacher and other students; and
  4. the cost of educating the student in a mainstream environment. Id. at 1401, 1404.

While this decision has not been overturned, the definition of benefit has been enhanced by the Endrew decision issued by the Supreme Court in 2017. In an analysis of Endrew the US Dept. of Education states in Ques. 7. “With the decision in Endrew, F., the Court clarified that for all students, including those performing at grade level and those unable to perform at grade level, a school must offer an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” This standard is different from, and more demanding than, the “merely more than de minimis” test applied by the Tenth Circuit. As the Court stated, “[t]he goals may differ, but every child should have the chance to meet challenging objectives.” (4)

Change Of Placement: CITIZEN COMPLAINT (SECC) NO. 19-45. “ One of the procedural requirements of the IDEA is that a reevaluation must be completed before a significant change of placement is made. In re: Kent School District, OSPI Cause No.-SE-0111 (WA SEA 2016). The performance and skill levels of students with disabilities frequently vary, and students, accordingly, must be allowed to change from assigned classes and programs. However, a school may not make a significant change in a student with disabilities placement without a reevaluation. Student Placement in Elementary and Secondary Schools and Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (Office for Civil Rights, August 2010). In determining whether a change in placement has occurred, the district responsible for educating a student eligible for special education must determine whether the proposed change would substantially or materially alter the student’s educational program. In making this determination, the following factors must be considered: whether the educational program in the student’s IEP has been revised; whether the student will be educated with nondisabled children to the same extent; whether the student will have the same opportunities to participate in nonacademic and extracurricular activities; and, whether the new placement option is the same option on the continuum of alternative placements. Letter to Fisher, 21 IDELR 992 (OSEP, July 6, 1994).”

In some cases, districts are requiring staff to write addendums to the IEP to change the students placement from a special education setting to general education setting.

WAC 392-172A-03115 Educational placements. Consistent with WAC 392-172A-05000 (3)(a), each school district must ensure that the parents of each student eligible for special education services are members of any group that makes decisions on the educational placement of the student. Simply notifying the parent of the decision is not sufficient.