News Alert: Stay Put Awarded to Preschooler with Autism and Apraxia

Today, Mandy Favaloro of A2Z Educational Advocates won a stay put order from the U.S. District Court for the Central District of California in a factually complicated case involving a preschooler with Autism and Apraxia. The victory is a small victory, in that it means only that the child continues to recieve the disputed services during the time that our case is going forward, and does not determine what the ultimate outcome will be. But it is a significant victory in this case nonetheless, not only for this family, but on the bigger issue of stay put in general.

Stay put means that a school district must maintain a student in their "current educational placement" during the pendency of a dispute (at the administrative and subsequent judicial levels) between parents and the school district. "Then current educational placement" refers to that which was in place, agreed upon and implemented (usually) prior to the dispute arising.

In the 9th Circuit (and in some, but not all, other circuits), case law establishes that stay put acts as an "automatic injunction." In other words, when a case is pending, it is a given that the child will continue in his / her current program. Parents filing for an order determining stay put need only establish what the student's current program is, and are not required to establish all of the factors that would be considered ordinarily when a party to an action is seeking injunctive relief.

Sounds simple, right? And in many cases it can be. A child is in a general education class, which has been written into her IEP, consented to by the parents, and implemented. The District proposes to change Child's placement to a special education class, and parents disagree. When parents file for a due process hearing, it is "automatic" that the child should continue in the general education classroom during the pendency of the dispute.

Not all cases are so simple, and determining what makes up a child's "current educational placement" can in fact involve many different factors. Such was this case, and the daunting challenge facing Mandy and the A2Z team has been to effectively piece together rules and holdings from various cases in order to establish the totality of what should be stay put for this particular child.

This case is complicated, in part because the IEP "in dispute" is the child's initial IEP when he transitioned to the school district at age 3. It is complicated because there has never been a fully agreed upon and implemented IEP. Parents agreed upon some parts of the initial IEP and a subsequent IEP, but not all, and District implemented some, but not all, of what parents consented to. It is complicated by the fact that now, there is a decision from an ALJ in an underlying due process case, a decision that finds in favor of parents on some issues and the district on others; a decision that is being appealled by parents now, but only partially. The fact that the decision ordered reimbursements for specific services funded by the parents in the past throws another kink into the analysis, as does the fact that the order for prospective services is less clear than the order of compensatory remedies.

So what is stay put and how do we determine it in such a complicated case? Here are the issues and what we can learn from this case:

(1) Unilateral Placement (i.e. private school specifically) at Parents Expense Does Not Automatically Prevent Parents from Accessing Stay Put

In this case, stay put includes a program that is funded in part by parents and in part by the District. Because parents did not win on their unilateral placement argument (specifically as to the private school itself) at the due process level, and are appealing that finding, there is no requirement that the District would have to now pay for the private school during the pendency of the dispute. It is important to note that, contrary to the District's assertion, Parents did not ask for District funding for the private placement as part of stay put. His "status quo" at the time of the appeal included placement in the private school at parent expense. It is also important to note that the fact that parents decided to maintain that status quo while they appealed the finding regarding the private school of the ALJ did not prohibit them from receiving other services funded by the district as part of stay put.

(2) Continuation of Agreed Upon and Implemented Services is Necessary

The basic principles of stay put require that those components of the program to which the District and parent have agreed, and have been "in place" prior to this dispute, must continue to be provided. Here, there were services from the child's initial IEP which had been agreed upon and implemented, and those services must continue. The District argued that because the ALJ did not agree with Parents regarding the private school (unilateral placement) that they sought, and yet Parents chose to continue in that program, the Student was no longer entitled to services. The Court disagreed, and said that inherent in the stay put provision is the requirement that the District continue those services that were already agreed upon and in place.

(3) "Otherwise agree" includes that which is ordered by an ALJ (and not appealled by parents)

Stay put typically includes the program identified in a child's previously agreed upon IEP, unless parents and the district "otherwise agree." This court found that "where the due process hearing officer 'agrees with the child's parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents' for purposes of stay put." (citing 34 C.F.R. 300.518(d)). Further, "an order for reimbursement predicated on a finding that a previous IEP was substantively inappropriate 'constitutes a change in the child's current educational placement for purposes of interpreting [stay put].'"

Here, the ALJ's order included specifically identified reimbursements for services funded by parents as a result of their dispute with the district's offered program. The school district attempted to argue that no "agreement" had occurred because the ALJ disagreed with parents on some aspects of what they sought (like the private school).

The Court found that the District's argument completely ignored the fact that the District is "required to provide those special education and related services that are not in dispute," and further stated:

The IDEA's implementing regulations require only that the ALJ agree with the
parents that "a change of placement is appropriate," not that
all changes are appropriate, in order to establish an agreement between the
State and the parents for the purposes of stay put."

Ultimately, the court ruled in parents favor and ordered that the District fund the services, while parents continue to fund the private school placement. The services that make up this child's stay put include a combination of those agreed to from the initial and subseuqent IEPs (and thereafter implemented by the District) and of those that the parents previously funded and were awarded reimbursement for in the ALJ's decision. As to the latter, the stay put order specifically identifies the service providers, as they were identified specifically in the reimbursement order by the ALJ, meaning that in this case, the student's stay put will continue to include his current providers specifically.

Mandy did an outstanding job piecing together cases and rulings to make a strong and effective argument in this very complicated stay put case. As this is her very first District Court case as an attorney of record for parents, I think she deserves much props for this outcome. It stands to show that with zealous and dedicated advocacy, coupled of course with a situation where the law is in Parents favor (and someone with the legal savy to be able to show that it is in their favor, even when it's complicated), a positive result CAN happen for students and parents!

A redacted copy of this decision will shortly be posted on A2Z's website.

Misconceptions about IEPs, and how they impact parents and students

I'm a frequent twitter user, and follow many people who tweet about special education issues. On "HootSuite," an application that both enhances and simplifies use of twitter, I have an ongoing search set to track tweets with certain words in them, including "IEP." This search gets all kinds of results, from informational posts to parents simply talking about their kid's IEP meetings.

Today, I saw this tweet:

"My son is in an IEP in middle school, if I don't get him out of IEP b4 HS he will be put in classes that will not help succeed."

This statement makes me sad, because it is representative of such a large and persistent problem when it comes to special education. I have no idea the circumstances behind this post; no information about this child's disability or his current program. But what I do know is that I have heard this statement before.

There are two problems I see illuminated by this mom's statement, one having to do with the realities of special education that lead her to feel this way; the other having to do with the misunderstanding behind it.


Let's address the misunderstanding first: Special education is not a place! Rather, special education is a combination of services, specialized instruction, accommodations, and supports that a student needs in order to receive an educational benefit. A child is not "in" special education, but rather "receives" special education. True, there are many instances in which the combination of services, supports, and specialized instruction that a child requires can best be provided in a separate classroom setting or even a specialized school, but that is an individual decision for each child based upon his/her IEP. It is not and should not ever be the assumption that a child on an IEP will be "placed" in special classes.

Even when you are talking specifically about placement, rather than more broadly about special education, the concept includes more than simply where a child will receive instruction. In California, the legal definition of "specific educational placement" incorporates this notion: "Specific educational placement means that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs, as specified in the individualized education program, in any one or a combination of public, private, home and hospital, or residential settings." Title 5, California Code of Regulations, Section 3042(a).

The assumption that a child will be in certain classes simply because he/she is on an IEP also flies in the face of the idea of "least restrictive environment." (For a good overview of the relationship between special education and "inclusion" read this article by the Maryland Coalition for Inclusive Education). The legal presumption of where a child will be placed is actually the opposite of this statement. The presumption is that a child with a disability will be placed in general education / educated with typical peers, and that removal to special classes or specialized schools will only happen if the child's disability is such that education in general education cannot benefit the child, even with the full range of supplementary supports and services in place. In other words, the school district should make efforts to include a child in "regular" classes before considering specialized settings; these efforts should include the full range of services and supports that could assist the child in the regular setting. Assuming that simply because a child is on an IEP, he/she will be in certain special education classes at any point in the child's educational career is not an assumption that any district, parent or IEP team should make, because it ignores the fact that special education (a service, not a place) could be provided in the regular education setting.

As to the realities of this statement: Unfortunately, in many places the reality may be that a child on an IEP, particularly a child with certain categories of disabilities, will likely be "warehoused" into specialized classes and taken off of the "diploma track" in high school. I have faced this reality in some of my cases. I know of parents with students in middle school who feel the same way as the mother who tweeted this post. They are looking into the future of their child's program, and the only options they see within special education are specialized classes with "functional skills based curriculum," separated both from the general education students and from the general education curriculum standards. They go and view these classes and see what is "taught" there. And they come away with the conclusion that if their child goes into those classes, he/she will never learn the skills necessary to have any chance of succeeding in further education, employment, etc after high school.

This comes up with two sets of kids particularly. The most obvious are the students labeled as "severely disabled." In lower grades, many school districts are doing a good job of developing "inclusive schools" where even the students who need to be in specialized settings for some or most of their instruction are included within the general education setting for part of their day, even part of their academics. In high school, the argument is made that this is not possible, it's more difficult, it will no longer benefit the student. High school general education classes are fast paced, standards and testing driven, and students move from class to class all day long. Students with "significant" disabilities are unfortunately moved into "self-contained" programs at this stage, where they are in the same specialized classroom setting for the full school day. The argument also becomes that at this stage, these students need to learn "functional skills," and rather than incorporating these while keeping instruction in academics aligned with general education standards, these classes focus solely on functional skills. These students are not likely those whose parents will decide to "exit" them from special education, but they are still faced with the reality of little to no options other than these specialized classes.

The second set of students affected as a group are those that are what I will call "on the cusp" of needing an IEP. These are the students who have long-standing disabilities; high functioning Autism, ADHD, learning disabilities, etc, but who have received great interventions and services and have made such progress that they no longer require intensive supports. I've seen IEPs ignore the fact that a student really can learn general education content, and place them in a very restrictive special education setting simply because that is what is available at that school / grade level. The misconception is at its worst here: the thought is that if the child requires specialized instruction at all, he/she must therefore need a specialized setting. The fact is, the system simply isn't doing a good enough job of providing the full range of options for these kids, of implementing research based instructions and services that support the students in general education settings and learning general education curriculum, without removing them to specialized settings. If a parent is weighing the benefits of special education against the risk of having the child removed from classes that would prepare him/her for college or other post-secondary education, what is that balancing going to favor?

What is the result of a parent's belief, be it misconceived or based in reality, that a child should be "taken off of an IEP" before high school in order to be able to be placed in academically challenging classrooms, rather than in specialized programs that will "not help [them] succeed?" Unfortunately, it would seem that the result would be kids in high school not getting the services that they need. Imagine being the parent in this catch-22: On the one hand, you want your child to learn academics, to be successful and to go to college. The "track" that your child will be put on if he/she remains on an IEP and goes only to these special classes may not accomplish those things. On the other hand, your child still has a disability, still needs services and supports, but you are told that the option for special education in HS is to place the student in a special class. You, as the parent, may not be given the full benefit of understanding that special education is not a place, that your child should be educated in the general education setting to the maximum extent possible with appropriate supplementary supports and services, and that your child's IEP should include a transition plan, geared towards outcomes that may include post-secondary education. That parent is faced with an impossible choice, and so the child that is "on the cusp," let's say, in terms of needing an IEP may be exited from special education.

What a parent holds onto by keeping their child on an IEP in high school is the right to a transition plan. Special education is premised on the idea of preparing students for productive lives after high school: to live as independently as possible, and to be contributing members of the community. This comes most sharply into effect when the Individual Transition Plan (ITP) becomes a part of a student's IEP at age 16.

Transition services are defined as "a coordinated set of activities for a child with a disability... designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities...; based on the individual child's needs taking into account strengths, preferences and interests; and includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and when appropriate, acquisition of daily living skills and functional vocational evaluation."

Is the system doing what it is supposed to do if students are exited out not because they no longer need supports and services, but because their parents (or even school district staff) are under the impression that an IEP equals placement in a special classroom? Congress recognized that meaningful parent participation is essential to effective implementation of the IDEA, and at the heart of meaningful parent participation is the fact that parents must be given information about what their rights are, what programs are available, what the district is obligated to provide. If parents aren't being informed, or worse, if districts themselves are misinformed about LRE and other requirements and truly are making this the choice for high school kids, then right at the critical moment of special education, right when transition planning that is so key to the "big picture" of what special education is all about comes into play, students are being denied the services and supports they need to succeed in later life.

Parents are faced with difficult, sometimes impossible, choices. No one can make those choices for them, but as their advocates and attorneys, as school district staff charged with providing students an appropriate education and including their parents in the decision making progress, and as a community of professionals, parents and providers, we can educate parents and continue to fight to put an end to the misconceptions about special education. Only when special education truly no longer is a "place" but a service in all school districts, and only when parents and the community at large understand this, will parents be empowered to fight for appropriate services to continue, rather than eliminating services and supports rather than risk placement in an inappropriate setting.

Fast Fact Friday: How often does the school district have to reassess my child?

Generally a school district reassesses a student once every three years unless parents agree to waive the assessments. A school district cannot assess more than once in the same area in a year unless the Parents agree. Parents can always request new assessments or ask for reassessments at any time. A school district must then either issue an assessment plan in 15 days or provide Parents with written notice of why they will not conduct an assessment.