Education Law - SchoolNET

Decision by the State Review Officer

In a decision that will have statewide ramifications, the State Review Officer clarified the standard to determine whether the actions of a school district constitute a change in placement, thus triggering certain procedural requirements under the Individuals with Disabilities in Education Act ("IDEA") before the district can take such actions. In Application of a Child with a Disability, Appeal No. 05-028, a school district made certain staffing modifications to its language delayed/learning disabled program ("LD/LD program") without conducting a CSE meeting or providing prior notice to the parents of the special education students enrolled in the program. The State Review Officer determined that the staffing modifications did not constitute a change in placement because the LD/LD program's staffing components were not contained in the student's IEP.

The SRO based his decision, in part, on a 1994 determination by the United States Department of Education's Office of Special Education Programs ("OSEP") entitled Letter to Fisher. In the decision, the SRO noted that:

[In Letter to Fisher, OSEP] specifically addressed the question of what constitutes a change in educational placement and opined that consideration should be given to whether a change in educational placement has occurred on a case-by-case basis, as it is a very fact specific inquiry (Letter to Fisher, 21 IDELR 992 (OSEP 1994)). OSEP concluded that whether a change in educational placement has occurred turns on "whether the proposed change would substantially or materially alter the child's educational program" (id.). OSEP set forth the following factors to be considered in determining whether a change in educational placement has occurred:

whether the educational program set out in the child's IEP has been revised;
whether the child will be able to be educated with nondisabled children to the same extent;
whether the child will have the same opportunities to participate in nonacademic and extracurricular services; and,
whether the new placement option is the same option on the continuum of alternative placements. Application of a Child with a Disability, Appeal No. 05-028, at 6.

The SRO further noted that "OSEP established that if this inquiry leads to the conclusion that a substantial or material change in the child's educational program had occurred, the public agency must provide written prior notice (Letter to Fisher, 21 IDELR 992 (OSEP 1994))." Id. at 7. Based on the above standard, the SRO ruled that the district's actions did not constitute a change in placement because none of the four factors set forth in Letter to Fisher supported such a finding.

This SRO decision gives school districts precise guidance on whether or not their actions constitute a change in placement, thus triggering certain procedural requirements under the IDEA. Before modifying a special education student's program, a school district should carefully evaluate the above four factors, especially the first factor regarding whether the modification corresponds to services set forth in the student's IEP, to determine whether the modifications will result in a change in placement. If it appears that a change in placement will occur, then the CSE should conduct a CSE meeting and provide the student's parents notice before modifying the program.