SPOTLIGHT ON SPECIAL EDUCATION: “STAY PUT” PLACEMENT DURING THE APPEALS PROCESS

One of the fundamental tenets of special education law is that during a pending dispute between a school district and a family regarding a special education student’s proper placement, the student must remain in his or her current placement until the dispute is resolved.  This principle, known as the “stay-put” requirement, was recently revisited in a case before the Third Circuit Court of Appeals.

In J.E., et al v. Boyertown Area School District, a panel of the Third Circuit reviewed the cross-appeals filed by the parents and school district following the decision of the due process hearing officer to deny the parents’ opposition to a change in placement.  The student involved, J.E., was a high school student eligible for special education by reason of his Asperger’s Syndrome; reading, math and writing disorders; and a learning disorder related to auditory and visual processing.  He attended a private school from 2001 through 2008 pursuant to an IEP agreed to between his family and the school district.  His parents unilaterally moved him to a different private placement prior to the 2008-2009 school year.  A hearing officer later sided with the parents that their unilateral private placement was proper and J.E.’s prior private placement was inappropriate. 

Prior to the 2009-2010 school year, the school district proposed a new placement for J.E. at a new autistic support class housed in the district’s high school pursuant to a revised IEP, to which the parents disagreed and filed for due process.  The appointed due process hearing officer found that the district’s new proposed placement was proper, and both the District Court and the Third Circuit, in a non-precedential decision, affirmed that finding. 

However, despite the courts’ affirmance of the propriety of the school district’s proposed placement, the District Court and Third Circuit both found that the school district was financially responsible for the costs of maintaining J.E. in his former private placement during the pendency of the due process proceeding and the District Court appeal over the new autistic support classroom placement.  The school district argued before the District Court and the Third Circuit that its obligation to pay the costs of the “stay put” placement only extended through the date of the hearing officer’s decision in favor of the district’s new placement.  In addressing this argument, the Third Circuit noted that the statutory language of the stay-put provision of the Individuals with Disabilities Education Act does not say specifically which party bears the cost of maintaining pendent placement or at what point in the proceedings does the “stay put” placement apply.  However, referring to past precedential decisions within the Circuit, the Court noted that it has held that a school district is responsible to pay the cost of a pendent private placement at least through the date of a final order entered by a district court.

As a result, if your school district is engaged in a due process proceeding concerning a student’s private placement, or if you are contemplating filing for due process, it is important to consider that the Third Circuit has reaffirmed that your district will be responsible to continue paying for the pendent placement through the due process hearing and a District Court appeal, if any, concerning that due process hearing.  This obligation applies regardless of whether your district ultimately prevails in establishing that the proposed new placement is proper.  In summary, whether the school district is in the right or in the wrong, the district nevertheless pays for the pendent placement