Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

Pursuant to a scheduling order the parties filed papers on October 3, 2001 setting forth their respective positions regarding the proper placement for [Student] (the "Student") during the pendency of the due process hearing, commonly known as the "stay put" placement, and filed responsive papers on October 4, 2001. A telephone conference was held on October 5, 2001 respecting the matter. Both parties thereafter submitted additional evidentiary materials on October 8, 2001 and also on October 10, 2001. I conclude that during the pendency of these proceedings special education and related services should be delivered at Tainter Elementary School as asserted by Rice Lake Area School District (the "District").

The Student has a date of birth of [XXXXXXXX] and resides within the District. The District has identified him to be a "child with a disability" under state and federal law for purposes of eligibility for special education and related services. See Wis. Stat. § 115.76(5); 34 C.F.R. § 300.7. A recent diagnosis for the Student is "autism spectrum disorder with associated traits of [attention deficit hyperactivity disorder]".

The Student commenced the 2000-2001 academic year in all day kindergarten at Haugen Elementary School ("Haugen") and received special education and related services there pursuant to an individualized educational program ("IEP") developed in May 2000. Haugen is the school that the Student would attend if he were non-disabled.

The District developed another IEP on November 28, 2000 with projected inclusive dates of January 2, 2001 to May 31, 2001.

The Parents have not registered any objection to the educational program set forth in the IEP of November 28, 2000. They have not contended that the IEP is procedurally or substantively deficient, nor have they asserted that the District should have continued with the educational program set forth in the preceding IEP of May 2000.

The District determined that the Student’s placement under the IEP of November 28, 2000 would be at Tainter Elementary School ("Tainter"). Tainter, like Haugen, is a regular elementary school in the District, but it is situated further from the Student’s home. The stated reasons for placing the Student at Tainter rather than the school he would attend if he were non-disabled (Haugen) were set forth in the "Determination and Notice of Placement" as follows:

Though apparently satisfied with the educational program set forth in the IEP of November 28, 2000, the Parents objected and continue to object to implementation of that program at Tainter. The Parents resisted transferring the Student to Tainter, and the District delayed the transfer. Communication between the Parents and District continued through the remainder of the kindergarten year as the District attempted to effect a transition from Haugen to Tainter. Throughout this period, the District stood by the determination to implement the IEP at Tainter, and the Parents were at least equally resolute that the IEP should be implemented at Haugen. Despite the District’s decision to transfer the Student to Tainter, the Student continued to attend Haugen for the remainder of the kindergarten year.

Counsel for the Parents asserted during a prehearing telephone conference that the IEP of November 28, 2000 had been implemented at Haugen last school year, albeit perhaps not always perfectly. A representative of the District has averred that the IEP of November 28, 2000 was not fully implemented at Haugen because Haugen lacked the staffing and resources required by the IEP, specifically as follows: (1) a full-time paraprofessional assistant, (2) a full-time special education teacher, and (3) a special education resource room. (Second Hall Affidavit). In contrast, one of the parents has averred that there is indeed a "resource room" at Haugen and that the District used it last school year to deliver special education services to the Student. This parent also indicated that last school year the District staff otherwise provided special education and related services at Haugen as required by the IEP of November 28, 2000. (Second Parent Affidavit).

The disagreement over which regular elementary school the Student should attend continued through the summer of 2001. The parties engaged in voluntary mediation in an effort to resolve it but by the beginning of current school year they had not.

August 29, 2001 was the first day of the current school year. The District would not allow the Student to enter Haugen, and the Parents chose not to enter the Student at Tainter. The Student remains out of school as of the date of this order.

On August 30, 2001, an IEP team meeting was convened for the following stated purposes: (a) to develop an annual IEP, (b) to determine continuing placement, and because (c) the "Student needs interim IEP to address service needs prior to entering school." It is not clear from the information presented why the IEP team meeting was not convened until the day after the first day of school, though the mediation and scheduling difficulties appear to have been factors.

The IEP team began developing an annual or interim IEP at the August 30, 2001 meeting. The parties disagree on whether a valid IEP resulted from this meeting. The Parents contend one was not. The District avers that one was, and it has proffered a document that on its face appears to be a completed IEP developed on August 30, 2001 (identified as Exhibit Q). Regardless whether this is a valid IEP, the educational program set forth therein is unquestionably derivative of the IEP of November 28, 2000. Exhibit Q contains a placement determination specifying Tainter as the appropriate school for substantially the same reasons articulated in the IEP of November 28, 2000, which are quoted in detail above. For reasons that are in dispute, it appears that the Parents did not participate in this placement determination.

The Parents’ request for a due process hearing was filed by counsel on September 18, 2001. The gist of the due process hearing request is to challenge Tainter as not being the "least restrictive environment" because Tainter was not the Student’s "neighborhood school" nor the "school he attended last year" and therefore the Student was denied a free appropriate public education (FAPE). The due process hearing request does not contain any challenge to the procedural or substantive adequacy of any IEP. The due process hearing request also asserted that during the pendency of these proceedings the Student should be educated at Haugen pursuant to the statutory "stay put" provisions.

Impartial hearing officers appointed to resolve special education disputes have the authority to determine the proper "stay put" placement of a child. Letter to Armstrong, 28 IDELR 303 (OSEP 1997).

The "stay put" provision of the Individuals with Disabilities Education Act ("IDEA") provides that "during the pendency of any proceedings … the child shall remain in the then-current educational placement of such child" unless the parties agree otherwise. 20 U.S.C. § 1415(j). The federal regulation implementing the statutory stay-put provision provides that during the pendency of administrative proceedings the child "must remain in his or her current educational placement," absent an agreement otherwise. 34 C.F.R. § 300.514(a).

Wisconsin Statutes § 115.80(8) is to the same effect as the federal statute and regulation but states the stay put requirement somewhat differently. State law provides that "during the pendency of any proceedings under this section, the local educational agency may not change the educational placement of a child unless the parents agree to the change." (Emphasis supplied). There is no substantive difference between the "must remain" language of the federal law and the "may not change" language of the state law. See Wis. Stat. § 115.758, which provides: "To the extent possible, this subchapter shall be construed in a manner that is consistent with 20 USC 1400 to 1487."

The purpose of the stay put provision is to "prevent school officials from removing a child from the regular public school classroom over the parents’ objection pending completion of review proceedings". School Comm. of the Town of Burlington v. Dept. of Ed. of Mass., 471 U.S. 359, 373 (1985). The stay put provision "represents Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved." Drinker v. Colonial School District, 78 F.3d 859, 864 (3d Cir. 1996).

"Because the term ["then-current educational placement"] connotes preservation of the status quo, it refers to the operative placement actually functioning at the time the dispute arises." Thomas v. Cincinnati Board of Education, 918 F.2d 618, 625-26 (6^th Cir. 1990). A "dispute arises" for purposes of "stay put" as of the date that the request for a due process hearing is filed. Letter to Winston, EHLR 213:102 (OSEP 1987). If a request for a due process hearing is filed after "an IEP has been implemented, then that program’s placement will be the one subject to the stayput provision." Thomas v. Cincinnati Board of Education, 918 F.2d at 626. If "the dispute arises before any IEP has been implemented, the ‘current educational placement’ will be the operative placement under which the child is actually receiving instruction at the time the dispute arises." Id.

The term "current educational placement" is not defined in the statutes or regulations. The official comments to the federal "stay-put" regulation, 34 C.F.R. § 300.514(a), address the absence of such a definition:

64 Fed.Reg. 12406, 12616 (1999).

The U.S. Seventh Circuit Court of Appeals’ understanding of the meaning of "educational placement" is a similarly fluid "fact-driven approach":

Board of Education, District 218, Cook County, v. Illinois State Board of Education, 103 F.3d 545, 548-49 (7^th Cir. 1996)(internal citations and footnote omitted).

The IEP of November 28, 2000 was the last operative IEP that had actually functioned when "stay put" became effective on September 18, 2001. (Assuming, as the Parents contend, that a valid IEP was not developed on August 30, 2001, then there would be no operative IEP for the 2001-2002 school year.) For purposes of this analysis I accept the Parents’ contention that the November 28, 2000 IEP was implemented, though imperfectly, at Haugen last school year. I accept further their contention that special education and related services may be adequately delivered at Haugen during the pendency of these proceedings.

The District’s determination to place the Student at Tainter was not for disciplinary reasons. Also, the Parent’s due process hearing request does not challenge the procedural or substantive appropriateness of any IEP. Moreover, given that Tainter and Haugen are both regular elementary schools, it does not appear that enrollment at Tainter would be less inclusive than enrollment at Haugen, except for the fact that Haugen would be the school the Student would attend if he were non-disabled. In these respects the facts here parallel Cook County -- there are no concerns that the transfer to Tainter is based upon a disciplinary measure or that the Student and his IEP are mismatched. Accordingly, the "looser interpretation" of the meaning of "educational placement" applies, so the focus in determining the educational status quo should be the special education and related services (i.e., the "educational program") specified in the IEP, not the location at which the educational program is implemented. Even though the November 28, 2000 IEP was implemented at Haugen last academic year, in this case, for purposes of "stay put", that factor is subservient to the educational program set forth in the IEP.

The Parents challenge not the special education and related services to be provided under the IEP, but rather the District’s determination to implement the educational program of the IEP at one rather than another of its regular elementary schools. The statutory stay put provisions require that the educational program set forth in the IEP be implemented during the pendency of these proceedings. Under the applicable "looser interpretation" of "current educational placement" for stay put purposes, the District may choose to implement this educational program at either Haugen or Tainter. Having designated the latter, the IEP shall be implemented at Tainter Elementary during the pendency of these proceedings, unless the parties agree otherwise.

IT IS THEREFORE ORDERED that during the pendency of these proceedings the District shall implement the IEP of November 28, 2000 at Tainter Elementary School, unless the parties agree otherwise.

Dated at Milwaukee, Wisconsin, this _12th_ day of October 2001.