When “Safety” Changes a Child’s Education: Kentucky Students With Disabilities, Placement, and Procedural Safeguards

Why Kentucky’s placement laws, IDEA, Sixth Circuit precedent, and parent protections matter when disability-related behavior leads to exclusion or outside crisis referrals

M. Patton Special Education Advocacy & Consulting LLC

Disclaimer: This is written by a special education advocate that is also a mother of children in Kentucky public schools. This is not legal advice. This is research and advocacy. If you or your family have experienced these things outlined below do not suffer in silence. Seek legal counsel. An advocate is not legal counsel.

There is a difficult conversation that Kentucky needs to have about students with disabilities, school safety, mental-health crisis referrals, and educational placement.

Schools have a legitimate responsibility to respond to genuine safety concerns. But safety does not erase IDEA. It does not erase the IEP. It does not erase the ARC. And it does not erase a parent’s right to participate when a child’s educational program or placement is being changed.

Through my continued research into school-directed mental-health crisis referrals involving Kentucky students with IEPs, I found a group of Kentucky statutes and administrative regulations that deserve far more attention. Read together, they raise serious questions about what must happen when a student leaves the educational setting established through the IEP and begins receiving instruction through a hospital, home/hospital program, institution, or alternative education program.

This is especially important where the sequence begins at school: disability-related behavior occurs; school personnel direct or strongly press for an outside crisis assessment; a parent is warned that refusal may result in a report to the Cabinet for Health and Family Services/Department for Community Based Services (DCBS); the student is admitted to a psychiatric setting; and the student then receives educational services somewhere other than the IEP-established school environment.

The legal question cannot end with the words “mental health,” “medical,” or “safety.” We have to ask what happened to the child’s education.

Kentucky Law Puts the ARC at the Center of Placement Decisions

Kentucky’s laws are strikingly consistent on one point: when a student with a disability moves into certain different educational settings, the ARC has an explicit role in the placement decision.

KRS 158.033 — Home or Hospital Instruction

KRS 158.033 is Kentucky statutory law enacted by the General Assembly. Subsection (5) provides that, for students with disabilities, the ARC is responsible for placement decisions regarding home or hospital instruction in accordance with IDEA. The statute further ties the instruction to the student’s IEP as determined by the ARC.

That language matters. Kentucky did not describe home/hospital education for a student with a disability as merely an attendance code or medical accommodation. The statute expressly uses the language of placement and assigns that decision to the ARC.

702 KAR 7:150 — Home or Hospital Instruction

Kentucky’s home/hospital regulation reinforces the statute. 702 KAR 7:150 §1(5) states that, for students with disabilities, the ARC is responsible for placement decisions regarding home or hospital instruction in accordance with IDEA and 707 KAR 1:350. Section 1(6) also requires ARC documentation for program enrollment.

If a student with an IEP is being educated through a home/hospital framework, Kentucky law therefore gives us a direct question: Where was the ARC placement decision?

707 KAR 1:350 — Kentucky’s Special-Education Placement Continuum

707 KAR 1:350 is Kentucky’s special-education placement regulation. It requires placement decisions to be made by the ARC in conformity with least-restrictive-environment requirements.

Kentucky’s continuum expressly includes:

• regular classes;

• special classes;

• special schools;

• home instruction; and

• instruction in hospitals and institutions.

That list is important because it demonstrates that Kentucky recognizes meaningful differences among these educational settings. Moving a child from a regular-school program with access to nondisabled peers to instruction in a hospital or institution is not something that should be analyzed only by asking where the child is physically located. The child’s educational program, services, peer access, LRE, and placement option all matter.

704 KAR 19:002 — Alternative Education, Including Safety-Based Placement

Kentucky’s alternative-education regulation is equally significant. 704 KAR 19:002 §3(2) requires the placement decision for a student with an IEP to be made through the ARC process. The IEP must also address changed educational-delivery needs associated with entry into or exit from alternative education.

And there is another critical point: Kentucky’s definition of involuntary alternative placement is not limited to discipline. The regulation includes placement by district personnel for safety, educational need, transition to a state-agency-child placement, or disciplinary purposes when the placement was not requested by the parent or emancipated student.

So “this was for safety, not discipline” is not, by itself, an answer to the placement question. Kentucky’s own alternative-education regulation expressly contemplates safety-based involuntary placement while still preserving the ARC requirement for students with IEPs.

IDEA: A Change of Placement Is About the Educational Program, Not Just the Address

Federal IDEA law adds another layer. Under 34 C.F.R. §§300.114-300.116, placement decisions must comply with the least restrictive environment requirements and must be based on the student’s IEP. Parents are part of the group making educational-placement decisions. Prior written notice is required when a public agency proposes or refuses to initiate or change a child’s identification, evaluation, educational placement, or FAPE. See 34 C.F.R. §300.503.

OSEP’s Letter to Fisher framework, reaffirmed in its 2021 and 2022 letters to Tymeson, asks whether a change would substantially or materially alter the child’s educational program. Among the relevant considerations are:

• whether the educational program in the IEP has been revised;

• whether the child can continue to be educated with nondisabled children to the same extent;

• whether the child retains the same opportunities for nonacademic and extracurricular participation; and

• whether the new setting is the same option on the continuum of alternative placements.

Those factors are particularly important when a student goes from a regular-school IEP setting to hospital-based, home/hospital, institutional, or alternative instruction. The analysis should focus on what actually changed in the child’s education.

The Sixth Circuit Has Already Warned Against Artificially Separating “Treatment” From “Education”

Kentucky is within the U.S. Court of Appeals for the Sixth Circuit. Several Sixth Circuit decisions are therefore particularly important to this discussion.

Tilton ex rel. Richards v. Jefferson County Board of

Education, 705 F.2d 800 (6th Cir. 1983)

Tilton arose in Kentucky and involved children with disabilities receiving both treatment and education through a day-treatment program. The Sixth Circuit rejected the argument that the program could simply be characterized as treatment rather than education. The court explained that special education and related services can overlap with services traditionally described as treatment.

Tilton is especially relevant when a school or agency tries to end the IDEA inquiry merely by describing the new setting as therapeutic or medical.

Babb v. Knox County School System, 965 F.2d 104 (6th Cir. 1992)

Babb involved a student receiving services at a psychiatric hospital that had an educational program. The Sixth Circuit again emphasized that IDEA’s concept of education can include academic instruction and associated services that may also be characterized as treatment. The court also recognized that FAPE can include instruction in hospitals and institutions and related support services.

The lesson is not that every medical admission automatically becomes a school placement. The lesson is that when education is actually being delivered in a psychiatric or treatment setting, the word “treatment” does not allow the educational system to stop asking IDEA questions.

N.W. v. Boone County Board of Education, 763 F.3d 611 (6th Cir. 2014)

N.W., a Kentucky case, is useful for understanding the distinction between a parent’s unilateral private placement and a placement attributable to the public educational agency. That distinction becomes important when the facts do not look like an independent parent choice, but instead begin with school direction, school pressure, or school involvement and are followed by continued educational services through another setting.

The factual pathway matters.

When Child-Protection Reporting Becomes Pressure: The DCBS Concern

Schools and educators have mandatory child-abuse and neglect reporting responsibilities. Nothing in this discussion should discourage a good-faith report when an educator has reasonable cause to believe a child is being abused or neglected.

But mandatory reporting and using the possibility of a child-protection report as leverage are not the same thing.

Families have described situations in which a parent who questions or declines a school-directed outside mental-health assessment is told that DCBS may be contacted for “medical neglect.” When a report or threatened report is used to pressure a parent into accepting an outside assessment, treatment decision, or educational consequence, I believe it is fair to ask whether the child-protection system is being weaponized against the family rather than used for its intended protective purpose.

That concern should be investigated carefully and based on evidence. It should not be generalized to every Kentucky school or every DCBS report. But it also should not be dismissed simply because school personnel are mandatory reporters. This is why Congress provided procedural safeguards.

The Sixth Circuit Has Addressed Child-Protective Reports and Disability Advocacy

Two Sixth Circuit retaliation cases are important context, although neither is an IDEA placement case.

In A.C. ex rel. J.C. v. Shelby County Board of Education, 711 F.3d 687 (6th Cir. 2013), the court considered allegations that school officials made child-services reports against parents after disputes over disability accommodations. The Sixth Circuit treated the reports as potentially relevant adverse actions and examined evidence such as timing, factual basis, personnel knowledge, mandatory-reporting explanations, and possible pretext.

In Wenk v. O’Reilly, 783 F.3d 585 (6th Cir. 2015), the Sixth Circuit likewise addressed a child-protective-services report in the context of a parent’s special-education advocacy and a retaliation claim.

These cases do not mean that a school violates federal law every time it makes a child-protection report. They do mean that the existence of a mandatory-reporting system does not place every report beyond legal scrutiny. Facts, motive, timing, basis, and context matter.

What Does “Direct Threat” Actually Mean?

The phrase “direct threat” is often used loosely in school conversations. Legally, however, it has a specific meaning under Title II of the Americans with Disabilities Act.

Under 28 C.F.R. §35.139, a public entity may address an individual who poses a direct threat to the health or safety of others. But the determination must be individualized. It must rely on reasonable judgment grounded in current medical knowledge or the best available objective evidence.

The analysis considers the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications, auxiliary aids, or services could mitigate the risk.

A label, diagnosis, disability category, generalized fear, or subjective assumption is not the same thing as an individualized direct-threat determination.

Just as important: the ADA direct-threat concept does not replace IDEA. For an IDEA-eligible student, IDEA’s FAPE, behavioral-support, discipline, placement, and procedural-safeguard requirements continue to matter.

Congress Did Not Leave Schools Powerless: IDEA Has Specific Safety Procedures

One of the most important misconceptions in this debate is that following IDEA means a school cannot respond when there is a serious safety concern. That is incorrect.

Congress gave schools specific authority under IDEA to address defined “special circumstances.” Under 34 C.F.R. §300.530(g), school personnel may place a student with a disability in an interim alternative educational setting for up to 45 school days, without regard to whether the conduct is a manifestation of the disability, in three narrowly defined circumstances involving a weapon, specified illegal-drug conduct, or serious bodily injury to another person at school or a school function.

But Congress paired that authority with procedural safeguards.

• The student continues to have a right to educational services under 34 C.F.R. §300.530(d).

• The IEP Team determines the interim alternative educational setting under 34 C.F.R. §300.531.

• When a removal constitutes a disciplinary change of placement, IDEA requires parent notification and procedural safeguards.

• IDEA also provides an expedited due-process mechanism when maintaining the current placement is substantially likely to result in injury. A hearing officer may order an appropriate interim alternative educational setting for up to 45 school days under 34 C.F.R. §300.532.

This is the point: Congress knew that serious safety situations would occur. It did not respond by creating a procedural vacuum. It created safety authority with rules, parent participation, continued educational obligations, and review.

KY schools are using loopholes to bypass the procedural safeguards put in place by Congress under IDEA.

Threat Assessments Do Not Suspend IDEA

The U.S. Department of Education made this particularly clear in its 2022 IDEA discipline guidance. IDEA neither requires nor prohibits a school risk or threat assessment. But when one is used with a student with a disability, the student’s IDEA rights remain in place.

OSEP explained that personnel conducting a threat or risk assessment should understand the student’s disability and the district’s FAPE obligations. Where appropriate, coordination with the IEP Team can identify the nature of the disability, whether behavioral supports were implemented with fidelity, what additional supports might mitigate risk without exclusion, and whether the IEP or placement needs review.

That is fundamentally different from treating a threat assessment or outside crisis referral as a separate track where IDEA simply disappears.

Honig v. Doe: The Principle We Should Not Forget

The Supreme Court confronted this tension decades ago in Honig v. Doe, 484 U.S. 305 (1988). Honig involved students with disabilities and serious behavioral concerns under IDEA’s predecessor statute.

The Court rejected the invitation to create an unwritten “dangerousness” exception to the stay-put protection. Its explanation remains one of the most important statements in special-education law:

“Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students…”

Honig v. Doe, 484 U.S. 305, 323 (1988).

Honig was decided under an earlier version of federal special-education law. Congress later amended IDEA and expressly added disciplinary safety procedures, including the special-circumstances provisions discussed above. That history strengthens—not weakens—the central point: schools have authority to address legitimate safety concerns, but that authority operates through law and procedural safeguards rather than unilateral exclusion.

Our Students With Disabilities Have Been Failed When the Process Becomes the Problem

Students with disabilities are failed when disability-related behavior is treated only as misconduct or danger without asking what the behavior communicates about unmet needs.

They are failed when an IEP contains behavioral needs but the required positive behavioral interventions, supports, specially designed instruction, FBA, BIP, or related services are inadequate or never meaningfully reviewed.

They are failed when a crisis process operates outside the ARC even though the result changes where and how the child receives education.

They are failed when parents are treated as obstacles rather than required members of the educational decision-making team.

And families are failed when fear of a child-protection report becomes part of the pressure surrounding a disputed mental-health referral rather than a safeguard reserved for circumstances that genuinely warrant reporting.

None of this means schools should ignore safety. It means the opposite: safety decisions involving students with disabilities should be more careful, more individualized, more data-driven, and more procedurally sound—not less.

The Question Kentucky Needs to Answer

Kentucky law gives us a very concrete question:

When a school-directed mental-health referral results in a student with an IEP leaving the IEP-established school environment and receiving educational services through a hospital, home/hospital, institutional, or alternative setting, which Kentucky placement framework applies—and where is the ARC decision required by that framework?

If the education is home/hospital, KRS 158.033 and 702 KAR 7:150 point to the ARC.

If it is alternative education, 704 KAR 19:002 points to the ARC.

If the student is receiving instruction in a hospital or institution, 707 KAR 1:350 expressly places that type of instruction on Kentucky’s special-education placement continuum and requires ARC placement decisions.

Federal IDEA law then requires the district to examine the actual educational program, LRE, parent participation, IEP implementation, procedural safeguards, and whether the change substantially or materially alters the child’s educational program.

Calling the situation “safety,” “mental health,” or “medical” does not answer those questions.

Safety and Disability Rights Are Not Mutually Exclusive

The strongest school-safety system is not one that works around IDEA. It is one that understands IDEA.

Congress gave schools tools to respond to serious situations. Kentucky gave ARCs explicit responsibility for placement decisions involving students with disabilities. Federal guidance tells schools to coordinate threat and risk assessment with the IEP process when appropriate. And the Supreme Court warned decades ago against returning to unilateral exclusion of students whose disabilities make them difficult to educate.

Our students with disabilities deserve more than a referral out of the building. They deserve an educational system that asks what they need, implements their IEP, addresses disability-related behavior, protects genuine safety, includes their parents, and follows the procedural safeguards Congress put in place for a reason.

Kentucky families should not have to choose between safety and IDEA. The law does not require that choice.

Kentucky families should not have to fear sending their child to school due to mental health referral for crisis being completed for their child. Kentucky families should not have DCBS weaponized against them.

If your family has experienced the above do not sit in silence- seek out the assistance of an attorney. Many families are withdrawing their children from our KY public schools.

The Commonwealth should not be a place where families fear our public school system.

Primary Authorities and Further Reading

• KRS 158.033 — Home or hospital instruction

• 702 KAR 7:150 — Home or hospital instruction

• 704 KAR 19:002 — Alternative education programs

• 707 KAR 1:350 — Placement decisions

• 34 C.F.R. §300.530 — IDEA authority of school personnel / special circumstances

• 34 C.F.R. §300.531 — Determination of interim alternative educational setting

• 34 C.F.R. §300.532 — Appeal / hearing-officer safety authority

• 28 C.F.R. §35.139 — ADA Title II direct threat

• OSEP Q&A 22-02 — Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions

• OSEP Policy Letter 21-01 to Tymeson — change-of-placement/Fisher factors

• Honig v. Doe, 484 U.S. 305 (1988)

• Tilton ex rel. Richards v. Jefferson County Board of Education, 705 F.2d 800 (6th Cir. 1983)

• Babb v. Knox County School System, 965 F.2d 104 (6th Cir. 1992)

Important note: This article provides educational advocacy information, not legal advice. Whether a particular action constitutes a change in educational placement or violates IDEA, Section 504, the ADA, or Kentucky law depends on the individual facts and record.

M. Patton Special Education Advocacy & Consulting LLC | Kentucky Special Education