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.

Fast Fact Friday: Individual Services Plan

There are certain circumstances where a Parent of a student with special needs may decide to place their child in a private placement even if they believe the school district is providing an appropriate placement.

A parentally-placed private school child with a disability is, under the law a child "with disabilities enrolled by their parents in private, including religous schools or facilities that meet the definition of elementary school or secondary school," who have not been referred to that placement by the LEA. See 34 CFR 300.130. When you have privately placed your student, generally speaking, you are not entitled to services for that student.

School districts do, however, have an obligation to allocate some special education funds to parentally-placed private school children. If the school district decides to provide a student with any services they must develop an individual services plan, which describes the specific special education and related services to be provided to each private school student. See 34 CFR 300.132(b). These service plans are to be developed, reviewed, and revised consistent with the procedures governing IEPs. See 34 CFR 300.137(c)(1). In preparing service plans and providing services, the district must consult with private school representatives. See 34 CFR 300.137(c)(2). In particular, the district must ensure that a representative of the private school attends these meetings, or in the alternative, uses other methods to secure the involvement of such individuals such as individual or conference phone calls.

IEPs are generally more comprehensive than the more limited services plans developed for parentally placed private school children with disabilities designated to receive services. A services plan should reflect only the services offered to a parentally placed private school child with a disability designated to receive services and must, to the extent appropriate, meet the IEP content requirements or, when appropriate, for children aged three through five, the IFSP requirements as to the services that are to be provided. See Questions and Answers on Serving Children with Disabilities Placed by Their Parents at Private Schools, 106 LRP 57733 (OSEP 2006).

Private Placements Part 3: Locate an Appropriate Unilateral Placement

In a unilateral placement case, when parents are seeking reimbursement for a private school placement, parents must demonstrate that the private placement the child is attending is "appropriate" for that child. This presents what the courts have deemed a "stringent but not impossible" task. Parents meet this burden by demonstrating that the private placement meets the child's needs and provides the child with educational benefit. Courts will look at whether the placement reasonably serves the child's individual needs.

This analysis is obviously fact-sensitive and varies in every single case. The "appropriateness" of the private placement is something parents need to keep in mind at every stage of this process, from deciding to disagree with the district's proposed placement, to searching for an appropriate alternative, to deciding if/when to seek reimbursement.

Things to Consider:

There are many things parents can consider when deciding on a placement. Its helpful to start out with a list of your child's unique needs as a starting place so that you can keep in mind how the different components of various options may (or may not) meet those needs. Then make a list of the things that would be required to be in a program for it to be appropriate for the child. Utilize your experts and evaluators during this stage if possible.

Examples of factors to think about include:

* Class size: does your child need a small class size with fewer peers? higher teacher:student ratio?

* Campus size / setting: does your child get overwhelmed in a large campus setting? are there safety concerns that may arise in larger settings?

* Specialized Instructional Methods: what specialized instructional programs does your child need? for example, does your child need specialized instruction for reading and is it available at this placement?

* Behavioral Components: what type of behavioral program does your child require? will class-wide behavior modification work? does your child require staff with certain training or experience to address his/her behavior?

* Social Skills Components: does your child need social skills instruction as part of a classroom curriculum component? in-the-moment training and facilitation throughout the day? does your child need access to appropriate social-models in terms of peers?

* Training of Staff: does your child require access to staff with specific training or experience working with kids with particular needs / disabilities?

Thinking about topics like these will help parents to ensure that if they are in the situation of having to choose a private alternative for placement, that placement is one that meets the child's needs so as to be considered "appropriate" when they are later seeking reimbursement.

Remember that the appropriateness of the private placement is only one factor, and only applies if the District's proposed placement is found to be inappropriate. While making a list of your child's unique needs and considering these factors when analyzing placement offers and options naturally will lead to some comparison between the District's placement and the private one, remember that comparing them is not the analysis the court will use. It is not enough simply to show that the private placement is "better," because ultimately you must show that the District's placement was not appropriate.

Private Placements Part 2: When an alternative may be necessary

Unilateral placement cases are highly fact-specific and each case is unique. It is advisable that a parent seeking to place their child unilaterally and obtain reimbursement for the costs of that placement obtain assistance from a special education attorney or highly experienced advocate from the initial stages of this process. An attorney or advocate can assist the parent with following all of the necessary steps in the process along the way.

The previous post in this series talks about when and how a parent gives notice to the school district of their decision to place their child unilaterally at a private school. Prior to reaching the point of providing notice, parents must go through the process of determining that a private placement is necessary for their child. The case law recognizes that such a determination is made at the parents' financial risk; that is, there is no guarantee that the parent would ultimately be reimbursed. Therefore, the determination to take such a step should only be made when it is necessary, and must be done cautiously. This second part of the "private placement" blog series discusses factors and situations that may give rise to such a determination.

Parents have attempted to work with the District to find another suitable alternative

Generally, parents should not rush into a unilateral, private placement without first trying to work within the District's system to locate an appropriate alternative. This doesn't mean that every child has to necessarily "try" the District's proposed classroom before the private placement occurs. But it does mean that parents should work cooperatively with the District, attend and participate in IEP meetings, voice their concerns about placements proposed by the District, go and observe District programs when possible, and provide the District with input from private experts or independent evaluators. If the District has not been given the "opportunity" to provide the student with an appropriate program, ultimately it is likely that a judge will find that reimbursement is not appropriate.

Private placement should be considered, therefore, in situations where the parent has actively and cooperatively participated in IEPs and placement discussions and has made efforts to work with the District to secure an approrpiate publicly funded placement. Many parents only turn to a unilateral placement after visiting / observing all of the recommended placements by the District, having multiple meetings with the District about placement, voicing their concerns, etc, and then determining that there is no appropriate option within the District's alternatives and private placement is therefore necessary. To read an example of such a case, see Board of Education of the City School District of the City of New York, 39 IDELR 56 (SEA NY 2002).

The District delayed completion of or implementation of an appropriate IEP, thereby denying educational benefit

In some circumstances, the district's unjustifiable delay in completing or implementing an IEP may cause such a loss of educational benefit to the student as to support the need for a private placement and reimbursment to parents. Consider whether the district has failed to complete an IEP at all, leaving it "in limbo" such that the student has no program in place. If this has happened, parents may be faced with a choice between leaving their child with no specialized program, or unilaterally placing the child in an appropriate program and seeking reimbursement. If the issue is not development of the IEP, but implementation, it is important to look at whether the component that has not been implemented was essential to the IEP, and the lack of that component meant that the program itself was no longer appropriate. Again, parents are then faced with a difficult choice between allowing their child to continue in the inappropriate program or unilaterally placing him/her. The cases on this issue are very fact specific, so it should not be simply assumed that any time the district fails to implement the IEP, unilateral placement will be justified. Again, it would be a good idea to have an expert opinion regarding the impact of the delay or non-implementation. For examples of such cases, read Board of Educ. of Chatham Cent. Sch. Dist., 39 IDELR 144 (SEA NY 2003 and Ms. M ex rel K.M. v. Portland Sch. Comm., 39 IDELR 33 (D. Me. 2003).

Student has made no progress in the District's program

When a student has already been in a specific program offered and provided by the school district, and that program has proved to be inappropriate or ineffective, it may be time for parents to consider an alternative. This scenario necessitates looking objectively at the data and information about the child to adequately determine if there has been progress or not, and therefore usually requires an expert's opinion. If the student has been in the program / methodology, ask yourself if he/she has made little to no progress in the specific area being addressed. Also, it is important to look at what the District knew or should have been aware of with regards to the lack of progress. Is this a situation where ongoing progress reports, IEP documents and other data were demonstrating for a significant amount of time that no progress was being made, yet the district ignored such data and continued to offer the same kind of program? Or is it a situation where there was no clear data on an ongoing basis, so maybe no one was aware of the lack of progress until the child was reevaluated much later? An alternative placement may be more appropriate in a situation where not only was the district's program ineffective and inappropriate, but the district also continued to offer said program despite indication that it wasn't working. For an example of such a case, read Draper v. Atlanta Indep. Sch. System, 108 LRP 13764 (11th Circuit 2008).

In some cases, there may be data and evidence that not only establishes lack of progress, but actual regression in some areas. If the child is regressing, rather than progressing, under the district's program, then parents may need to look for an alternative. In these situations, expert opinion would be critical to establish regression. Also, you should consider factors such as whether the district knew the child was regressing, how they responded, and whether they are now offering something different. Fo an example, read J.P. v. County Sch. Bd. of Hanover County, Va 46 IDELR 133 (E.D. Va. 2006).

District has offered a prospective placement that is not appropriate

Commonly, parents consider unilateral placements because of a dispute about what the district has offered prospectively. When the district's IEP and placement offer will not meet the child's needs or enable him/her to obtain educational benefit, the parents may need to consider rejecting that offer and unilaterally placing the child. Again, this is a very fact sensitive scenario, and the parents must consider the IEP offer carefully. An expert who can not only evaluate the child's unique needs, but also observe the proposed placement will most likely be necessary. It is important to look at what the child's identified unique needs are and evaluate the proposed IEP on whether or not it will meet those needs. Consider if there is a specific type of setting, for instance, that the child requires, or whether the child needs a therapuetic component to address his/her social / emotional needs. The totality of the factors will be considered in these situations to determine if the district offered FAPE, and ultimately if the parent is entitled to reimbursement for the unilateral placement. For examples of such cases, read Lamoine Sch. Comm. v. Ms. Z. ex rel N.S. 42 IDELR 172 (D. Me. 2005) and Board of Educ. of the City Sch. Dist. for the City of N.Y. 35 IDELR 28 (SEA NY 2001).


Remember that whatever situation arises that causes parents to consider a unilateral placement, parents need to be careful and consider all of the district's options before making such a decision. Consult with experts, providers and persons who know your child. It may also be necessary to consult with a special education advocate or attorney.

The next blog in this series will discuss another issue in private placement cases, which is consideration of whether the unilateral, private placement is appropriate.