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Ninth Circuit Rules That Partially Implemented, Multi-Stage IEP, As A Whole, Is Student’s Then-Current Special Education Placement

Posted by Unknown | Dec 07, 2016 | 0 Comments

On November 17, 2016, the Ninth Circuit Court of Appeals decided N.E. v. Seattle School District, in which it considered how to identify a student's “then-current”/“stay-put” special education placement when a parent brings a due process complaint.

The facts are somewhat convoluted:  Student is disabled and exhibited serious behavioral problems.  District A provided Student with individualized education program #1 (IEP #1), which was implemented.  Several months later, District A provided Student with IEP #2, which was a two-stage IEP.  Parents appear to have consented to IEP #2, agreeing with Stage 1, but expressing their objection to Stage 2.  Stage 1 was implemented during the remainder of the existing school year, with the understanding that Stage 2 would be implemented as of the beginning of the following school year.  During summer break, Student's family moved from District A to District B, a fact the Court determined does not change its analysis, but is still worth mentioning.  District B proposed a plan similar to Stage 2 of IEP #2.  After the implementation of District B's plan was scheduled to begin, Parents filed a due process complaint and a “stay-put” motion, claiming that Student's “then-current” or “stay-put” placement was IEP #1 or, alternatively, Stage 1 of IEP #2.

“The pivotal issue is what ‘educational placement' was ‘then-current…'” under the Individuals with Disabilities Education Act (“IDEA”).  The Ninth Circuit also identified a second issue:  Does the fact that Parents filed their due process complaint during the summer – before Student physically enrolled in District B's plan – force the Court to view Stage 1 of IEP #2 as the stay-put placement?

The IDEA provides, in pertinent part, that, “during the pendency of any proceedings conducted pursuant to this section [i.e., a due process proceeding]…, the child shall remain in the then-current educational placement of the child….”  (20 U.S.C. § 1415(j) (emphasis added).)  The IDEA does not define “then-current educational placement.”  Therefore, the Court relied on Ninth Circuit precedent to determine what the phrase means.

With respect to the first issue – what educational setting was then-current – the Ninth Circuit agreed with Defendant District B in finding that “a partially implemented, multi-stage IEP [such as IEP #2], as a whole, is a student's then-current educational placement.  A multi-stage IEP could be structured as several distinct IEPs, but[, as in this case,] it need not be.”  (Emphasis in original.)  The Court found that Student's “stay-put” placement pending due process proceedings was Stage 2 of IEP #2, and that Student would therefore remain in the Stage 2 placement offered and provided by District B while the proceedings were ongoing.

The second issue the Ninth Circuit decided was whether the fact that Parents filed their due process complaint during the summer and before Student physically enrolled in Stage 2 of IEP #2 (or District B's plan) forced the Court to view Stage 1 of IEP #2 as the stay-put placement.  The Court found that it does not.  IEP #2 was implemented, and its Stage 2 was always the intended setting in which Student would begin the new school year, effective before Parents filed their due process complaint.  The status quo at the time of the hearing request, and therefore Student's stay-put placement, was the anticipated entry into Stage 2 of IEP #2.

There is no question that Stage 1 of IEP #2 had been implemented during the previous school year, and IEP #2 implemented as a whole.  Without actually spelling it out, however, the Ninth Circuit appears to also conclude that Stage 2 of IEP #2 could independently be deemed “implemented” because it had already been scheduled to start by the time Parents filed their due process complaint, even though Student was not yet physically present in the new setting.  To find otherwise “would allow students and their families to challenge the second half of any two-stage IEP when the transition occurs during a school break and would permit repeated challenges at every stage of a multi-stage IEP.”  No legal authority precludes an IEP that spans a summer break.

Should you have any follow-up questions or comments regarding this case, please feel free to contact either our Southern California office at (714) 573-0900 or our Northern California office at (916) 245-8677, or visit our website at

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