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

Placement during appeals (Sec. 300.533)

Comment: One commenter recommended retaining the "stay-put" requirement in current Sec. 300.526(b). This section provides that if a child is placed in an interim alternative education setting and school personnel propose to change the child's placement after expiration of the interim alternative educational placement, during the pendency of any proceeding to challenge the proposed change in placement, the child must remain in the child's placement prior to the interim alternative educational setting. One commenter requested clarification as to whether the removal of current Sec. 300.526(b) represents a substantive change in the Department's policy. Other commenters requested clarifying what the child's placement would be after the 45-day interim alternative educational setting if the LEA requests another hearing under Sec. 300.532(b)(3).

Discussion: The Act changed the stay-put provision applying to disciplinary actions. The provisions regarding stay-put in current Sec. 300.527(b) are not included in these regulations because the provisions upon which Sec. 300.527(b) were based, were removed by Congress from section 615(k)(4) of the Act. We, therefore, are not revising the regulations in light of Congress' clear intent that, when there is an appeal under section 615(k)(3) of the Act by the parent or the public agency, the child shall remain in the interim alternative educational setting chosen by the IEP Team pending the hearing officer's decision or until the time period for the disciplinary action expires, which ever occurs first, unless the parent and the public agency agree otherwise.

Section 300.533 reflects the statutory requirements in section 615(k)(4)(A) of the Act. For example, consistent with Sec. 300.533, if a child's parents oppose a proposed change in placement at the end of a 45-day interim alternative educational placement, during the pendency of the proceeding to challenge the change in placement, the child remains in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period for the disciplinary action, whichever occurs first, unless the parent and the public agency agree otherwise.

Changes: None.

Comment: One commenter recommended that LEAs and SEAs not be allowed to have a policy prohibiting the IEP Team from deciding where the child would "stay-put" during an appeal under Sec. 300.532. The commenter stated that the IEP Team should have the authority to maintain a child in his or her current placement when appropriate.

Discussion: Section 300.531, consistent with section 615(k)(2) of the Act, provides that the IEP Team determines the interim alternative educational setting for removals that constitute a change in placement under Sec. 300.536. Additionally, section 615(k)(4)(A) of the Act is clear that, during an appeal under section 615(k)(3) of the Act, the child must remain in the interim alternative education setting pending the decision of the hearing officer or until the expiration of the time period for the disciplinary action expires, whichever comes first, unless the parent and the LEA agree otherwise. Thus, under the Act, whenever a hearing is requested under section 615(k)(3) of the Act by the parent or the LEA, it is the parties involved in the hearing (i.e., the parent and the LEA), not the IEP Team, that may agree to change the time period of the removal or the interim setting for the child. We, therefore, do not believe it is necessary or appropriate to regulate as suggested by the commenter. There is nothing in the Act or these regulations, however, which would prohibit the parents and the LEA from agreeing to involve the IEP Team in any decision to change the time period of the removal or interim alternative educational setting.

Changes: None.