Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

By letter dated August 7, 1998, [student], by her attorney Jeffrey Spitzer-Resnick, requested a due process hearing pursuant to the Individuals with Disabilities Act (IDEA) and Chapter 115 of the Wisconsin Statutes. The due process request was made after [Student]'s parents received a Notice of Placement from the [Unnamed] School District (District) in which she was assigned to Putnam Heights Elementary School (Putnam). [Student]'s parents object to her placement at Putnam and instead want her placed at Manz Elementary School (Manz). During the pendency of this dispute, [student]'s parents have requested that she remain "stay put" at Lowes Creek Early Learning Center (Lowes Creek), where she attended an early childhood exceptional education program for the past two years.

On August 20, 1998, a prehearing conference call was held at which time Mr. Spitzer-Resnick again requested that [student] be placed at Lowes Creek as long as the District remained unwilling to have her attend Manz. The parties were subsequently ordered to submit briefs on the sole issue of [student]'s stay put placement.

[Student] is a five-year old child who has Down's Syndrome, and a speech and language impairment. For the past two years, she has received special education services at Lowes Creek Early Learning Center. An individualized education plan (IEP) meeting was held on or about May 20, 1998. According to the IEP that resulted, [student] is supposed to begin attending kindergarten starting in August of 1998. Under that IEP, [student] is to attend a minimum of 660 minutes in a regular education kindergarten classroom. In addition, she is to receive 600 minutes per week of special education, including occupational therapy, physical therapy, and speech and language services.

The Individuals with Disabilities Act (IDEA) requires school districts to maintain a child's "current educational placement" while a due process hearing request is pending. 20 U.S.C §1415 (j) (1997). However, neither the IDEA nor its regulations define "current educational placement." Nevertheless, the Office of Special Education and Rehabilitative Services (OSERS) suggests that it means the current education and related services provided in accordance with a child's most recent IEP. Letter to Baugh, OSERS 211:481 (1987). Additionally, at least one federal court has ruled that a child's current educational program does not refer to a specific school, but rather to the general type of educational program in which the child is placed. Abrahamson v. Hershman, 552:289 (D. Mass., 1981).

Presently, there is no evidence to suggest that [student]'s current IEP is in dispute. In fact, her educational placement as outlined in that IEP makes it clear that she will attend kindergarten during the 1998-99 school year. Since her current IEP requires that the District place [student] in regular education kindergarten five days a week with therapy and educational support, her "current educational placement" strongly suggests placement in a kindergarten classroom. She obviously cannot be integrated with her age-appropriate, kindergarten peers for approximately ten hours each week if she remains indefinitely at Lowes Creek.

To implement [student]'s most recent IEP and to ensure compliance with the IDEA, she must eventually be placed in a kindergarten classroom for a minimum of 660 minutes each week. However, at this point, there is insufficient evidence to determine which of the three kindergarten options is most appropriate for [student]. To be sure, she should be placed in one of them, but for the undersigned administrative law judge to make a random placement, with little to support the choice, is not an appropriate remedy. Accordingly, she shall remain "stay put" at Lowes Creek, her last agreed upon placement, while this matter is pending.

Within the next thirty days, the parties have agreed to enter into mediation in an effort to resolve this issue. It is apparent that [student] is ready to begin attending kindergarten. The parties shall therefore bear in mind that a prompt resolution of this matter is highly desirable.

NOW THEREFORE IT IS HEREBY ORDERED that [Student] shall "stay put" at Lowes Creek Early Learning Center during the pendency of this proceeding.

Dated at Madison, Wisconsin, this 25th day of August, 1998.

APPEAL TO COURT. Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under §115.81 (8), Wis. Stats., or to federal district court pursuant to 20 USC 1415 and 34 CFR 300.511.

Editorial Note: The parties in this case subsequently entered into a settlement agreement and release and the Administrative Law Judge dismissed the case, based upon the stipluation of the parties, on November 23, 1998.