In our firm’s Toolbox Training we provide ten “tools” that are designed to ensure appropriate services to students with disabilities while maintaining safety and a healthy school environment. Tool #3 is an Educational Change of Placement Without Parental Agreement. That title alone should tell you that this tool should be used cautiously, and only when necessary to serve the student appropriately. Since it involves a lack of agreement with the parent, the school must be ready to defend its decision.
Belton School District 124 in Missouri did that. The court affirmed a hearing officer’s decision in support of the school’s decision to move the student out of the neighborhood school to a special school that only served students with severe and profound disabilities. The decision provides an excellent example of how the school satisfied the three factors it needed to show in order to justify the move to an MRE (More Restrictive Environment).
FIRST: THIS IS NOT WORKING. To justify the use of Tool #3 the school first has to show that the existing placement is not working out well. Here, the court made a detailed analysis of the six IEP goals, and concluded that the student was making minimal progress at best. On the goals where the student did show some progress, the court agreed with the school staff that this was more due to the student’s physical growth and maturation rather than the provision of special education.
The 8th Circuit, which governs Missouri schools, puts a particular emphasis on disruption as a factor in justifying a move to an MRE. This student was not a discipline problem and was not disruptive in the traditional sense of the word. But the court noted that this student was completely isolated from his non-disabled peers and the evidence showed that this was necessary:
Testimony from District staff establishes that Plaintiff on a pure sensory level cannot handle being in the cafeteria or in the regular classroom with other students and that he cannot participate in music class, art class, or assemblies. When he is around peers in a general education setting, “he responds by doing things like dropping to the floor, putting his hands over his ears, and vocalizing in an unintelligible and uncontrolled manner. He also frequently vomits and bites staff, requiring them to wear bite guards.
Thus the court concluded that the student was not disruptive, but “only because he has no meaningful interaction with or exposure to other students.”
SECOND: IT’S NOT FOR LACK OF EFFORT ON OUR PART. The school had made two prior efforts to move the student to the special school, backing off each time in response to parental resistance. As usual in cases like this, the parent offered ideas about other services the school could provide. The court responded:
…the record makes clear that the District has already provided him with full-time one-on-one services from a team of trained therapists, paraprofessionals, and instructors, advanced assistive technology, and a specially-designed independent workspace meant to minimize sensory input in the best-resourced room available. There is no reason to think that layering a new room or a new employee on top of the aides and services already provided will set Plaintiff’s IEP progress on a different trajectory.
THIRD: THIS WILL BE GOOD FOR THE STUDENT. The court noted testimony about how easily the student was distracted, and how short his attention span was. The neighborhood school “simply cannot provide the distraction-free environment that Plaintiff requires, even in the special education classroom that he is permanently assigned to.” In contrast, the special school “is a smaller school that is designed to offer a quieter environment with fewer distractions. It can provide ‘wrap-around services’ for Plaintiff, whereby therapy and classroom instruction can be provided in a calmer setting.”
In the Toolbox Training we encourage you to ask three questions before invoking Tool #3. Is this worth fighting over? Are we legally defensible? Are we united on this? It’s clear that the district gave a YES answer to the first and third questions, and now the court has said YES to question two. It’s J.P. v. Belton School District 124, decided by the federal court for the Western District of Missouri on August 13, 2021. We found it on Special Ed Connection at 79 IDELR 92.
DAWG BONE: TOOL #3: ASK THE THREE QUESTIONS. PROVE THE THREE THINGS.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: another retaliation case based on child abuse reporting…