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U.S. Department of Education: Promoting Educational Excellence for all Americans

Child's status during proceedings (Sec. 300.518)

Comment: A few commenters requested clarification regarding whether the current educational placement is the last agreed-upon placement. One commenter requested clarification as to whether the pendent placement is the regular education class or a class or program selected by the child's IEP Team.

Discussion: We believe that there is no need for further regulations in this area. The current educational placement during the pendency of any administrative or judicial proceeding described in Sec. 300.518 and section 615(j) of the Act, refers to the setting in which the IEP is currently being implemented. The child's current placement is generally not considered to be location-specific.

Changes: None.

Comment: One commenter recommended clarifying that an IFSP is not a child's pendent placement as the child transitions from a Part C early intervention program to a Part B preschool program.

Discussion: The programs under Parts B and C of the Act differ in their scope, eligibility, and the services available. Services under Part B of the Act are generally provided in a school setting. By contrast, services under Part C of the Act are provided, to the maximum extent appropriate, in the natural environment, which is often the infant or toddler's home or other community program designed for typically developing infants or toddlers. The Department has long interpreted the current educational placement language in the stay-put provisions in section 615(j) of the Act and Sec. 300.518(a) as referring only to the child's placement under Part B of the Act and not to the early intervention services received by the child under Part C of the Act. We believe that a child who previously received services under Part C of the Act, but has turned three and is no longer eligible under Part C of the Act, and is applying for initial services under Part B of the Act, does not have a "current educational placement."

We are adding language to clarify that if the complaint involves an application for initial services under Part B of the Act from a child who has turned three and is no longer eligible under Part C of the Act, the public agency is not required to continue providing the early intervention services on the child's IFSP. The provision clarifies that a public agency must obtain parental consent prior to the initial provision of special education and related services, consistent with Sec. 300.300(b), and if a child is eligible under Part B of the Act and the parent provides consent under Sec. 300.300(b), the public agency must provide those special education and related services that are not in dispute between the parent and the public agency.

Changes: We have added a new paragraph (c) in Sec. 300.518 to clarify the Department's longstanding policy that if a complaint involves an application for initial services under Part B of the Act from a child who has turned three and is no longer eligible under Part C of the Act, the public agency is not required to continue providing the early intervention services on the child's IFSP. Proposed Sec. 300.518(c) has been redesignated as new Sec. 300.518(d).

Comment: One commenter recommended revising Sec. 300.518 to clearly state that during the pendency of any administrative or judicial proceeding, LEAs are not absolved of their obligation to fully comply with all substantive and procedural requirements in Part B of the Act, with the exception of requirements that are impossible to fulfill because of the stay put order or because of a parent's refusal.

Discussion: We do not agree that the change requested by the commenter is necessary. Section 615(j) of the Act and Sec. 300.518 provide that during the pendency of any administrative or judicial proceeding regarding a due process complaint under Sec. 300.507, except as provided in Sec. 300.533, unless the parent and the SEA or LEA agree to a proposed change in the educational placement of the child, the child remains in the current educational placement. Implicit in maintaining a child's current educational placement is the requirement that the public agency must ensure that FAPE continues to be made available to the child.

Changes: None.

Comment: A few commenters recommended that stay put not apply to a child if the child's parent fails to participate in a resolution meeting. Another commenter expressed concern about the applicability of the stay put provision when resolution meetings are delayed.

Discussion: The Act now makes the resolution process a prerequisite to an impartial due process hearing. Under section 615(j) of the Act, a child must be maintained in the current educational placement while proceedings under the Act are pending, and paragraph (a) of Sec. 300.518 clarifies that unless the parent and the public agency agree otherwise, the child involved in the complaint must remain in his or her current educational placement during the pendency of any administrative or judicial proceeding regarding a due process complaint under Sec. 300.507. Thus, the Act is clear that the public agency must maintain the child's current educational placement during the pendency of the 30-day resolution process, which is triggered once the parent files a due process complaint under this part, regardless of whether the due process complaint is resolved prior to a due process hearing. We believe it is important for this to be clear in the procedural safeguards notice. Therefore, we are changing Sec. 300.504(c)(7) to clarify that the notice must inform parents about the child's placement during the pendency of any due process complaint.

Since a party must file a due process complaint as the first step in the hearing process, we also are making a change in Sec. 300.518(a) to refer to a due process complaint, rather than a request for a due process hearing. This change is needed to clarify that a child's right to remain in the current educational placement attaches when a due process complaint is filed, regardless of whether the due process complaint results in a request for a due process hearing.

Changes: We have removed the reference in Sec. 300.504(c)(7) to due process "hearings" and added "any due process complaint" to clarify that the procedural safeguards notice must include information regarding the child's placement during the pendency of any due process complaint. We also have changed Sec. 300.518 by removing the words "request for a due process hearing" prior to the reference to Sec. 300.507 and adding, in their place, the words "due process complaint."

Comment: One commenter recommended including language to invalidate the stay put agreement if the original decision is reversed at the second tier hearing or in a judicial appeal. One commenter recommended providing interim financial relief for parents if an LEA appeals the decision of a due process hearing officer to maintain a child with a disability in a private school setting.

Discussion: We are maintaining the provisions in proposed Sec. 300.518(c), (new Sec. 300.518(d)), but with one modification. The basis for this regulation is the longstanding judicial interpretation of the Act's pendency provision that when a hearing officer's decision is in agreement with the parent that a change in placement is appropriate, that decision constitutes an agreement by the State agency and the parent for purposes of determining the child's current placement during subsequent appeals. See, e.g., Burlington School Committee v. Dept. of Educ., 471 U.S. 359, 372 (1985); Susquenita School District v. Raelee S., 96 F.3d 78, 84 (3rd Cir. 1996); Clovis Unified Sch. Dist. v. Cal. Office of Administrative Hearings, 903 F.2d 635, 641 (9th Cir. 1990). To clarify that new Sec. 300.518(d) (proposed Sec. 300.518(c)) does not apply to a first-tier due process hearing decision in a State that has two tiers of administrative review, but only to a State-level hearing officer's decision in a one-tier system or State review official's decision in a two-tier system that is in favor of a parent's proposed placement, we are removing the reference to "local agency" in new Sec. 300.518(d). This change is made to align the regulation more closely with case law.

With regard to the concern about providing financial relief for prevailing parents when an LEA appeals the decision of a due process hearing to maintain a child with a disability in a private school setting, we decline to regulate on this issue because such decisions are matters best left to State law, hearing officers, and courts.

Changes: We have removed "or local agency" in new Sec. 300.518(d) (proposed Sec. 300.518(c)) because a decision by a hearing officer or a State review official in favor of a parent's proposed placement is an agreement between the parent and the State, not the local agency.

Comment: One commenter recommended clarifying that any agreement by a parent to waive the stay put protection must comply with the requirements for consent in Sec. 300.9.

Discussion: Consent is required when a pending complaint involves an application for initial admission to public school. In this case, parental consent is required for the child to be placed in the public school until the completion of all proceedings, consistent with Sec. 300.518(b) and section 615(j) of the Act. Other waivers of the stay put protections while an administrative or judicial proceeding is pending, need only be by agreement between the parent and the public agency.

Changes: None.