Dated November 26, 2001

Mr. Paul Veazey, Esq.

Stockwell, Sievert, Viccellio,

Clements & Shaddock, L.L.P.

One Lakeside Plaza

Post Office Box 2900

Lake Charles, Louisiana 70602-2900

Dear Mr. Veazey:

This is a response to your letter transmitted via telefacsimile to the
Office of Special Education Programs (OSEP) addressed to Ms. Nancy
Jenkins. Although your letter does not clearly state a specific inquiry
for OSEP to provide a response, we believe the central question of your
letter to be whether a public school board has the unilateral discretion
under the Individuals with Disabilities Education Act (IDEA) to choose
the educational placement of a child with a disability as an
administrative matter to the exclusion of any input from that child's
parents. Set forth below is our response to this question that provides
clarification about the involvement of parents in individualized
education program (IEP) process and educational placement decisions of
their child with a disability.

Only the child's IEP team may determine the content of the child's IEP,
and only the group of individuals specified in §300.552 may determine
the educational placement of a child with a disability based on that
child's IEP. Thus, a school board may not unilaterally make decisions
about the content of a child's IEP or the educational placement of the
child. The educational placement of each child with a disability must be
based on the individual needs of that child that are written in his or
her IEP.

It is important to point out that the parents of a child with a
disability must be invited to participate as active members of the IEP
team and as members of the group of individuals that determines the
educational placement of their child. Specifically, §300.344(a)(1)
requires that the parents of the child with a disability are included as
members of the IEP team, and §300.552(a)(1) requires that the parents
are included as members of the group of persons that determines the
child's educational placement. In some states, the IEP team serves as
the group making the placement decision. In other states, another group
of people may make this decision. In all cases, the parents have the
right to be members of the group that decides the educational placement
of their child. Either practice does not violate the IDEA so long as the
required members of the IEP team and the group that determines the
educational placement meet the requirements of the IDEA as set forth in
§§300.344 and 300.552.

Further, educational placement decisions must be made according to the
IDEA's least restrictive environment requirements. These requirements
state that, to the maximum extent appropriate, children with
disabilities, including children in public or private institutions or
other care facilities, are educated with children who are nondisabled.
*See* §300.550(b)(1). The IDEA clearly states that special classes,
separate schools, or other removal of children with disabilities from
the regular educational environment occurs only if the nature or
severity of the child's disability is such that education in regular
classes with the use of supplementary aids and services cannot be
achieved satisfactorily. *See* §300.550(b)(2).

With respect to State or local educational agency policies regarding
placement decisions, a policy establishing educational placement based
on a particular disability category is inconsistent with the IDEA. Each
child's educational placement must be determined on an individual
case-by-case basis depending on each child's unique educational needs
and circumstances rather than by the child's type of disability. The IEP
forms the basis for the placement decision that is made by the group
that decides the educational placement of the child. *See*
§300.552(b)(2).

Part B of the IDEA requires that a public agency make available a
continuum of alternative placements, or a range of placement options, to
meet the needs of children with disabilities. The options on this
continuum include instruction in regular classes, special classes,
special schools, home instruction, and instruction in hospitals and
institutions. *See* §300.551. However, the placement of an individual
student with a disability in a separate school can occur only if an
individual placement determination is made that the student's IEP cannot
be implemented satisfactorily in a less restrictive placement, and that
placement of the student in a separate school is needed to implement the
student's IEP.

It is important to point out that if the public agency, for example, has
two or more equally appropriate locations that meet the child's special
education and related services needs, the assignment of a particular
school or classroom may be an administrative determination, provided
that determination is consistent with the placement team's decision. The
public agency should exercise caution in making such a determination so
that the placement of a child with a disability is not based on factors
such as the category of disability, configuration of the service
delivery system and the availability of staff and instead is based on
the factors stated in §300.552.

We hope that this information is helpful. If you need further
assistance, you may contact Cynthia Bryant, the OSEP State contact for
Louisiana, at (202) 401-4583.

Sincerely,

/signed Patricia J. Guard/

Patricia J. Guard

Acting Director

Office of Special Education Programs

cc: Ms. Virginia Beridon

> Louisiana Department of Education