3 Court Decisions on Transition in Early Intervention

It is not easy to understand courts’ decisions, but they provide the most issue specific source of information about the law on a particular issue.  Below, we summarize and explain three cases relevant to “transition.” The first two are about your child’s right to have services continued if you challenge the preschool’s proposed IEP.  The third is about your right to have your child’s plan for preschools (Part B services) prepared in a timely fashion.

Transition and “Stay Put”

Your child has been receiving what you consider to be appropriate services in early intervention.  The preschool, however, wants to eliminate some of the IFSP services, reduce the frequency of other services, substitute different services, and/or take other action that you believe will impede your child’s development.

You are disappointed and frustrated at the transition planning meeting that your input is not considered.  The result is that the preschool staff develops an IEP that provides less than the IFSP.  You disagree and challenge the IEP in a due process hearing.  While you and the preschool are involved with the due process hearing, you want the IFSP services to continue or “stay put,” but the preschool wants to use their proposed IEP.

So in plain English, the legal question is this: 

• Does my child have a right to continued IFSP services while I am disputing the preschool-proposed IEP?
  

Your Legal Argument vs. the School’s 

Lawyers for parents have argued when your child is already in the service system, a preschool must continue the services your child already gets when you and the preschool have a disagreement about them. (20 USC Sec. 1415(j))—that your child has a right to “stay put” with IFSP services. 

Lawyers for school boards have argued that the “stay put” provisions apply only after your child has been enrolled in preschool and an IEP has been developed. They agree that if your child was enrolled and already had an IEP, “stay put” would protect the services. But they also argue that IDEA says if your child has not yet been enrolled—is applying for admission for the first time—there is no previous IEP and no stay-put protection (20 USC Sec. 1415(j)).  

What Do the Courts Say?

There are two inconsistent decisions. 

Stay Put Applies:  The federal court of appeals covering the states of Delaware, New Jersey, and Pennsylvania agreed with parents that the child’s IFSP services stay in place during transition.  Pardini v. Alleghany Intermediate Unit, 420 F. 3d 181 (3d Cir., 2005).  The court reasoned that there is nothing in Parts B or C that excludes “stay put” in transition situations.  If you live in one of those states, the law is settled: The “stay put” rule applies in transition.

Stay Put Does Not Apply:  The 11^th Circuit court of appeals agreed with school boards that the IFSP services do not stay in place during transition.  D.P. v. School Board of Broward County, 483 F. 3d 725 (11^th Cir., 2006).  It reasoned that “stay put” applies only after the child has been admitted to or is eligible to be enrolled in Part B programs.  If you live in one of those states, the law is settled: The “stay put” rule does not apply.

What does this mean?  It means that where you live determines whether your child has the right to “stay put” during transition.

• You have stay put if you live in:  Pennsylvania, New Jersey, or Delaware.
  
• You do not have stay put if you live in:  Florida, Georgia, or Alabama.
  
• Other states are not bound to follow either decision, so these cases do not resolve the uncertainty about the stay put provision in other states.  If any of you know which way other jurisdictions have gone on this issue, let us know in the comments or email me and I'll put it in the post.
  

Transition and Timeline for the IEP

IDEA requires an IEP to be in place for a child who is transitioning to preschool services by the time the child is 3 years old.  But what happens if the school district misses this deadline and you, as the child’s parents, have to find and pay for services on your own?  Does the preschool have to reimburse you for the cost of these services?

This is basically the situation that led to Board of Education of Paxton-Buckley-Loda Unit School District 10 v. Jeff and Debbie S., 184 F. Supp. 790, 2002 U.S. Dist. LEXIS 2166, (2002).  The preschool failed to have an IEP ready for a child with a new cochlear implant, and the parents secured private services to ensure the child had necessary services during this critical period.  The preschool refused to reimburse them for these services.  The preschool recognized that it failed to meet the deadline, but it argued that a minor procedural violation of IDEA didn’t require them to reimburse parents for their decision to seek private services.  The federal district court in Illinois disagreed.

The court in Jeff S. held that because it was a critical time for the child for implementing the cochlear implant, the child’s education could have been significantly impacted from the failure to meet the deadline for having a service plan.  In other words, the school district was required to reimburse the child’s parents for the costs of preschool services because (a) the preschool failed to meet the deadline for creating the IEP, and (b) the failure could have had a significant negative effect on the child’s education. 

So, the bottom line is that failing to meet the deadline for an initial IEP is a violation of IDEA, but it will only support reimbursement (for services the parent buys from private providers) if not having the services would have had a significant impact on the child's education.