The Toolbox is a set of “tools” available to school officials in dealing with disruptive and/or violent students with disabilities.  On previous Tuesdays, we have reviewed each of the 10 tools. Today, we focus on “change of placement.”

It’s important for school officials to know when the removal of a student from the placement called for by the IEP counts as a “change of placement.” If the district seeks a change of placement, an ARD meeting is necessary.  School administrators can order the short term removal of a special education student, such as a day or two or three in ISS or out of school suspension.  But if a removal meets the definition of a “change of placement” then an ARD meeting is needed. Moreover, if the change is due to the student’s violation of a provision in the Code of Conduct, a manifestation determination must be conducted.

Federal regulations include a definition of the term “change of placement.”

[A change of placement occurs if]:

The removal is for more than 10 consecutive school days; or

The child has been subjected to a series of removals that constitute a pattern—

(1) because the series of removals total more than 10 school days in a school year;

(2) because the child’s behavior, is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and

(3) because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.  34 CFR 300.536.

Many people think that it is always a change of placement if the student is removed for more than ten cumulative days in a school year.  But notice the regulation does not say that.  If it was always a change of placement when you get past ten days, the regulations would simply say so, and there would be no reason to distinguish between ten consecutive days vs. ten cumulative days.  The regulations would simply say that a change of placement occurs whenever the student is removed for disciplinary reasons for more than 10 school days.

Notice that the regulations do not say that.  They say that it is a “change of placement” only if the series of removals “constitute a pattern.”  They then define “pattern.”  Exceeding ten days is only one-third of the definition of “pattern.”  You also have to have “substantially similar” behavior and some combination of length of each removal, total days and proximity.  Removal of the student for 15 days in a semester, for example, would be much more serious than removal for 15 days spread out over the entire school year.

It’s up to the school officials to decide whether or not a particular removal is a change of placement.   The regulations say: “(1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement.  (2) This determination is subject to review through due process and judicial proceedings.”  34 C.F.R. 300.536(b).

We take this to mean that a school official should apply the definition of “change of placement” on a case-by-case basis, and the parent who disagrees with the decision can request a hearing.

In the Toolbox training, we go into this issue in depth, including the opportunity to practice deciding what is and is not a “pattern.”  If you are interested in a Toolbox training, contact me at the law firm, or our excellent client services manager, Haley Armitage (aharmitage@wabsa.com).

DAWG BONE: IT’S UP TO SCHOOL OFFICIALS TO DECIDE IF THERE IS A “PATTERN” THAT CREATES A “CHANGE OF PLACEMENT.”