Tool #3 in our firm’s Toolbox is an Educational Change of Placement Without Parental Agreement.  This Tool is generally used to move a student to a more restrictive setting due to serious behavioral and/or academic concerns arising from the student’s disability.  Since the behaviors are a manifestation of the student’s disability, a Disciplinary Change of Placement (Tool #6) is not available.

It's tough for the school district to use Tool #3.   The district uses Tool #3 by holding an ARDC meeting, proposing the change of placement, and bringing the meeting to closure despite a lack of consensus. The district then gives the parents a Prior Written Notice explaining the basis for the move to the new placement. The parent then has five days in which to request a due process hearing, which will automatically put the kibosh on the change of placement due to the “stay put” rule. If the parents do not request the hearing, the change of placement goes into effect.  If they do request a hearing, the district will attempt to convince a hearing officer that 1) the current placement is not working; 2) the district has made a good faith effort to make the current placement effective; and 3) the proposed placement will be beneficial to the student.

It’s even more complicated in Florida due to a state law that flat out prohibits a change of placement unless the parent consents to it.  In Florida, the district has to request a hearing to override the parent’s decision not to agree with the proposed change.

That’s exactly what happened in Orange County, Florida.  The district presented evidence to the hearing officer that the student required constant supervision, constant prompts, and “no access to unsupervised times.”  The school reported numerous instances of physical violence, threats of violence, sexual harassment and a social media post about “shooting up the school.” The district asserted that it did not have the continuum of services the student needed in the school where the student was placed, and so it recommended a move to a different school with tighter controls. 

The district was successful, no doubt aided by the fact that “No one appeared [at the hearing] on behalf of the student.”  Still, it took a lot of effort by educators and lawyers to effect this change of placement.

There is nothing easy about Tool #3, which is one reason why educators should always seek to obtain parental consent to a proposed change of placement. This requires a good explanation of why the move is in the best interests of the student.

Today’s case is a State Agency decision from Orange County, Florida, decided on September 7, 2022 and reported in Special Ed Connection at 122 LRP 39752.

DAWG BONE: THREE THINGS TO PROVE IN A TOOL #3 CASE.

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com. 

Tomorrow: rebutting the rebuttable…