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(6.46) What happens to my child’s placement and services if I file for a due process hearing?

(6.46) What happens to my child’s placement and services if I file for a due process hearing?

Except in certain circumstances discussed below, your child must remain in his current educational placement and have his currentagreed upon IEP fully implemented (including all related services) from the time you request a hearing until the due process hearing proceedings (and court appeals, if any) are completed.  [Cal. Ed. Code Sec. 56505(d); 34 C.F.R. Sec. 300.518.] This protection is usually called a “stay-put” provision. The stay-put may be changed if the parent and district agree to a change in placement or services while due process is pending.

Once the hearing is over, if a case goes on to court, the stay-put placement and services become whatever the ALJ has ordered in the administrative hearing. [ClovisUnifiedDistrict v. Office of Administrative Hearings, 903 F.2d 635, 648 (9th Cir. 1990); Cal. Ed. Code Sec. 56505(d).]

The student’s stay-put placement might also change in one of the following situations:

  1. If the child has engaged in a weapon or drug offense or inflicted serious bodily injury on another person, the district may change his placement (even if you have asked for a due process hearing) to an “Interim Alternative Educational Setting” (IAES) for up to 45 days. [34 C.F.R. Sec. 300.530(g)];
  2. If the district persuades an ALJ that the child’s presence in his current placement is “substantially likely to result in injury to the student or someone else,” the ALJ may place him in an IAES for up to 45 days [34 C.F.R. Secs. 300.532(a) & (b)]; or
  3. If the district persuades a state or federal court that the child’s presence in his current placement is “substantially likely to result in injury to the student or someone else,” then the student’s educational placement while a due process hearing is pending will depend on the terms of the court order. [Honig v.Doe, 484 U.S. 305, 307 (1988); Gadsden City Bd. ofEd. v. B.P., 3 F. Supp. 2d 1299, 1303 (N.D. Ala. 1998) (upholding Honigdecision after amendments to the IDEA).]

The Interim Alternative Educational Setting (IAES) must be selected so that the student can continue to participate in the general curriculum and to continue to progress toward meeting the goals set out in his IEP.
[34 C.F.R. Sec. 300.530(d)(1)(i).]