Chapter 5.18: Child's Status During Proceedings

    State Performance Plan (SPP):

    (See Overview in the Introduction for information on the SPP.)

    Intent:

    To ensure that a child with a disability continues to receive a free appropriate public education (FAPE), pending the decision of a due process hearing, state-level review or judicial proceeding.

    Timelines:

    During the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing, unless the state or school district of residence and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.

    REQUIREMENT

    3301-51-05
    (K) Conflict Resolution
    (19) Child’s status during proceedings

    (a) Except as provided in paragraph (K)(23) of this rule, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under paragraph (K)(7) of this rule, unless the state or school district of residence and the parents of the child agree otherwise, the child involved in the complaint must remain in the child’s current educational placement.
    (b) If the complaint involves an application for initial admission to the school district, the child, with the consent of the parents, must be placed in the school district until the completion of all the proceedings.
    (c) If the complaint involves an application for initial services under this rule from a child who is transitioning from Part C of the IDEA to Part B of the IDEA and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child has been receiving. If the child is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under rule 3301-51-06 of the Administrative Code, then the school district must provide those special education and related services that are not in dispute between the parent and the school district of residence.
    (d) If the state level review officer in an administrative appeal conducted by the Ohio Department of Education agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the state and the parents for purposes of paragraph (K)(19)(a) of this rule.

    GUIDANCE

    Child’s status during proceedings

    • If the child who is the subject of a due process hearing, a state-level review or a civil action and is being served under Operating Standards for Ohio Educational Agencies Serving Children with Disabilities, the school district continues to implement the current individualized education program (IEP). This is referred to as "stay-put."

    The "current educational placement" 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 (Federal Register, August 14, 2006, pg. 46709).

    The school district follows the preceding requirements if the complaint involves:

    • The provision of FAPE in all instances except matters involving discipline, or in the case of an out-of-state child moving into an Ohio school district;
    • An application for initial admission to public school;
    • An application for initial services under Part B for a child who is transitioning from Part C (Help Me Grow) of the IDEA to Part B, and who is no longer eligible for Part C services;
    • A state-level review; and
    • An appeal of a state-level review decision to a state or federal court.

    As stated in the above requirements, there is an exception to this "stay-put" rule. This exception applies when parents or a school district has filed a due process complaint in a disciplinary situation.

    In the case of a child who has been placed in an interim alternative educational setting as the result of a disciplinary situation, the child remains in the interim alternative educational setting pending the decision of the hearing officer or the expiration of the time period specified for the disciplinary action, whichever occurs first. An exception occurs when the parents and the Ohio Department of Education (ODE) or school district agrees otherwise. See Procedural Safeguards - 5.16 Expedited Due Process Hearing.

    • Even though the school district is required to maintain the child’s current educational placement, there is nothing that relieves the school district of its responsibility to convene a meeting of the IEP team periodically, but not less often than annually, to review and, if appropriate, revise an IEP for a child with a disability. This could include, among other matters, review and revision of the child’s present levels of academic achievement and functional performance and modification of the child’s annual goals, if appropriate. If the new IEP that the IEP team develops for the child for the current school year is different from the IEP developed for the child when pendency attached to the child’s current educational placement, the school district must ensure that the child receives the complete program of special education and related services contained in the IEP developed for the child when pendency attached, unless the parents and the public agency agree otherwise (Office of Special Education Programs (OSEP) letter to Mary D. Watson, April 12, 2007).
      • "When pendency attached" means on the date a due process complaint was filed.
    • If a child with a disability is transferring from out of state to an Ohio school district and does not have an IEP, and if the receiving district is unable to obtain the child’s records including the IEP and supporting documents from the previous school or from the child’s parents, the school district is not required to provide special education services to the child. However, the school district must place the child in the regular education classroom and conduct an evaluation if the district decides that an evaluation is necessary because it has reason to suspect the child has a disability. See IEP - 7.1 General for additional information on IEPs for children who transfer from another state.
    • If there is a dispute between the parents and the school district regarding whether an evaluation is necessary or regarding what special education and related services are needed to provide a free appropriate public education (FAPE), and if a due process complaint notice is filed, the child would remain in the regular education program during the pendency of due process proceedings. "Stay-put" does not apply in this situation because the evaluation is considered an initial evaluation and not a reevaluation (Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations, OSEP, June 2010, Excerpt from Response.)
    • If the due process complaint involves an application for initial admission to the school district, the school district provides an educational program to the child, with the consent of the parents, until all the proceedings are completed.
    • If the child who is the subject of a due process hearing is transitioning from early intervention services to preschool, the school district may, but is not required to, continue providing the early intervention services identified on the child’s individualized family service plan (IFSP), pending the resolution of a due process hearing, a state-level review or a civil action filed under the IDEA (OSEP letter to Paul S. Foreman, April 12, 2007).
    • If the child who is transitioning from early intervention to preschool is found to be eligible for preschool special education services, the school district and the parents develop an IEP. On the IEP, the school district provides the services that are not n dispute, pending the resolution of a due process hearing, a state-level review or a civil action filed under the IDEA.

     

Last Modified: 7/11/2013 4:12:36 PM