Residential placements, one of the most restrictive environments along the continuum of placements to be considered by child study teams, are increasingly the source of discontent between public school districts and parents of special education students.

In many instances, by the time a residential placement is sought, parents have reached an emotional breaking point and look to this option as a last resort while child study teams are compelled to offer an appropriate education in the least restrictive environment. The tension often results in a breakdown of the relationship between parents and school districts as well as costly litigation.

Often times, parents will unilaterally place their children in residential placements and then file for due process alleging that the placement is educationally necessary and the financial responsibility of the school district. What ensues is a battle of the experts and protracted litigation. Fortunately, the evolution of case law provides guidance as to when residential placements are appropriate and in fact the least restrictive environment.

In 1995, in Oberti v. Clementon Borough School District Bd. of Education, the Third Circuit identified three factors to consider when determining whether a more restrictive environment is appropriate:

  • whether the school district has made reasonable efforts to accommodate the child in a regular classroom with supplementary aids and services;
  • a comparison of the educational benefits available in a regular class and the benefits provided in a special education class; and
  • the possible negative effects of inclusion on the other students in the class.

Just two years later, in D.B. v. Ocean Township Board of Education, the court identified six additional factors to determine whether a residential placement is appropriate:

  • whether the child experienced emotional conditions that fundamentally interfered with the child’s ability to learn in local placement;
  • whether the child’s behavior was so inadequate, or regressing to such a degree, as to constitute a fundamental interference with the child’s ability to learn in a local placement;
  • whether, before the dispute arose, any health or educational professionals working with the child concluded that the child needed residential placement;
  • whether the child had significant unrealized potential that required residential placement for development;
  • whether past experience (with placing the child in a more restrictive environment) indicated a need for residential placement; and
  • whether the demand for residential placement was primarily to address educational needs.

Although using the aforementioned factors is not required, judges in our courts are relying on them in their decisions and child study teams should consider applying these factors when requests for residential placement are sought.

Another test historically applied by our courts is called the “inextricably interwined” test. In a 1981 case, Kruelle v. New Castle County School District, a student had several mental and physical disabilities as well as emotional problems. The court determined that when the social, emotional, medical and educational problems are so intertwined that it is not possible to separate them, residential placement is necessary and not separable from the educational process. The school district was held responsible for the cost of all components of this placement.

Regardless of whether a court will apply the nine factors or the Kruelle test, it is evident that each of these cases is extremely factually sensitive. And, while in some cases, it is clear that a residential placement is appropriate, typically, these cases are not so straightforward. For example, consider a case where a multiply-disabled student functions at grade level and behaves appropriately in a therapeutic day placement but engages in extreme negative behaviors outside of school and in the home. The parents request a residential placement essentially because they cannot control the child’s behaviors and fear that socially and emotionally without the support of a 24/7 residential placement, her safety or that of others would be jeopardized.

In this instance, it is arguable that the social, emotional and behavioral needs of this child are completely separate from her educational needs, which appear to be met in the day placement. However, if her emotional and social issues caused her to be excessively absent or the behaviors were exhibited in the school setting resulting in loss of skills or a lack of learning, it would be more difficult to say that her issues were not inextricably intertwined.

Similarly, applying the nine factors to the initial fact pattern, it would seem less likely that a residential placement was appropriate but in the latter situation, the result might be different. The determination of whether a residential placement is appropriate clearly involves a thorough factual analysis and a genuine understanding of the needs of the student.

So how can boards of education ensure that residential placement decisions are being made appropriately? A child study team must be properly trained in the IEP process. This necessarily includes an understanding of all placement options and the factors that should be considered in making placement determinations. Then, a discovery process should ensue. For students who were never served in the district but rather in out-of-district placements, it is critical for the child study team to review all education records from all current and past providers including psychologists, psychiatrists, social workers, and others. Team members should focus on the current areas of need and the progress the child is making in the current educational setting. Evaluations may be appropriate if recent ones are not available. If any providers are recommending residential placement, all records supporting that recommendation should be requested and reviewed. Child study team members should have an open dialogue with educational service providers to get a complete picture of the child in the school environment. Similarly, the team should engage in conversations with the parents in order to understand how the child functions at home and in the community. Maintaining strong communication with the parents will also serve to strengthen or rebuild the relationship between the parents and the district.

Since many of these matters are headed toward litigation early on, the team should assess all of the relevant information keeping in mind the factors the court would look to if the case did not settle. Relying on counsel during this process would be prudent. In some instances, the parties cannot agree that a residential placement is appropriate but might consider a cost-share agreement whereby the district funds the educational portion of the program offered in the residential setting and the parent bears the remaining costs.

Funding a residential placement may be the sole obligation of the school district when in fact such a placement is found to be an appropriate placement in the least restrictive environment. This could even be the case when the unilateral placement is in a secular residential placement. Districts should consider the benefits of resolving these disputes early to not only avoid costly litigation, but also to take advantage of other funding sources. Outside state agencies, insurance, Medicaid, and social security may be available to defray the costs of residential placement. Moreover, the district could seek to negotiate a reduction in costs as well as alternative payment arrangements directly with the residential placement.

While residential placements are one of the most restrictive environments where a child can be educated, they are sometimes necessary and appropriate. The request for a residential placement should not be taken lightly and, the decision to place a student residentially must be well informed. Boards must ensure that their child study teams are offering FAPE in all instances even for students who have never been served in district. Boards of education are urged to rely upon the vast knowledge of their special education counsel to ensure properly trained child study teams. Similarly, child study teams should seek assistance of legal counsel when evaluating records in conjunction with the factors used by our courts to assess the appropriateness of a residential placement. And, finally, the board should remain cognizant of the many benefits of resolving disputes concerning requests for residential placement, including the avoidance of and expense of protracted litigation and the ability to avail itself of alternate funding sources.

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