Circuit Court Finds Stay Put Does Not Apply to Unilateral Placement

by Franczek Radelet P.C.
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The Individuals with Disabilities Education Act (IDEA) provides that during the pendency of a dispute, a student must remain in his/her “then-current educational placement”; this is known as stay put. The IDEA does not, however, define the term “then-current educational placement.” In N.W. v. Boone County Board of Education, the hearing officer, state appeals board, and district court came to different conclusions regarding whether a parent’s unilateral placement could be a student’s stay put placement, thus requiring the district to fund it even if the district had offered the student a free and appropriate public education (FAPE). The Sixth Circuit determined that it could not.

A Kentucky district found student, N.W., eligible for special education and placed him in a private school focused on serving students with apraxia and hearing impairments. The student attended there for several years, until the student’s parents became dissatisfied with the school and unilaterally placed N.W. at a private school focused on serving students with autism. The IEP team met but did not reach an agreement on the student’s placement: the district offered to place N.W. at one of its public schools in a class for students with autism, but the parents believed N.W. needed to remain at the private school they had selected.

The parties engaged in mediation and agreed that N.W. would finish the school year at the private school chosen by the parents, and the district would pay a portion of the costs. The parties also agreed that they would attend an IEP meeting in the spring to create a plan to transition N.W. to the district school for the following school year. The agreement stated that neither party made an admission with respect to placement.

In the spring, the district attempted to schedule the IEP meeting. After the parents rescheduled several times, the team met twice during the summer. The team developed a transition plan, but the parents continued to have concerns about the district’s program and transition plan and therefore filed a due process complaint. The parents requested that the private school N.W. had been attending be considered his stay put placement during the proceedings.

The hearing officer found that the district’s proposed program offered N.W. FAPE, but that the private school was the student’s stay put placement because the student was actually attending there when the complaint was filed. The district was therefore required to reimburse the parents for the cost of the private school during the dispute. The parties both appealed to the state appeals board, which agreed that the district had offered N.W. FAPE but disagreed that the private school was the stay put placement. On appeal to the district court, the court determined that the district offered FAPE, but found that stay put was the private school, thus requiring reimbursement.

The Sixth Circuit Court of Appeals began its analysis with the provision in the IDEA dealing with unilateral placements. The IDEA states that a district is not required to pay for a private unilateral placement made by parents if the district made FAPE available to the student. And a court or hearing officer can award reimbursement for a unilateral placement only if the district did not make FAPE available to the student prior to the unilateral placement. The court concluded that parents make a unilateral placement at their own financial risk as the IDEA does not permit reimbursement for a unilateral placement if the hearing officer or court finds that the district offered the student FAPE.

Turning to the stay put issue, which had prompted the reimbursement award by the hearing officer and district court, the court attempted to define “current educational placement.” While the IDEA does not provide a definition, the regulations do define educational placement. The regulations state that the student’s placement is determined at least annually, based on the student’s IEP, and is as close as possible to the student’s home; additionally, the placement decision is made by a group of people that includes the parents. The court then reasoned that although N.W. had been attending the private school when the dispute arose, it was not a placement based on his IEP and made by his IEP team. Therefore, the private school did not meet the definition of educational placement and could not be N.W.’s stay put placement. The court determined that a unilateral placement could not qualify as a student’s stay put placement, only a placement that the district had previously agreed to could qualify. Reimbursement was thus not required in this case.

Stay put is often a complex concept and always dependent on the facts of the particular case. Consult legal counsel if you have questions about a particular matter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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