There are a number of “procedural safeguards” under the IDEA which are designed to ensure that the rights of children with special education needs, and their parents, are protected. They are all important, but, in my view, one of the strongest is what we call “stay-put.”
We use the term “stay-put” to refer to the educational placement the child should attend when a disagreement arises between the parents and the school district.
The words “stay-put” are actually not in the IDEA or the regulations, but this is how practitioners, Hearing Officers and Courts refer to 20 USC 1415 (j), which states as follows:
Maintenance of Current Educational Placement: Except as provided in subsection (k)(4) (which refers to discipline and misconduct), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.”
I know what you’re thinking: “what the heck does THAT mean?”
You’re not alone in this thought. Stay-put is not just one of the most important protections which parents of children with disabilities have; it is also one of the most tricky. Many cases have interpreted this provision, and Decisions can come out very differently in seemingly similar cases based on one or two changes of fact. This is especially true when the stay-put provision is interpreted in “misconduct” cases. Since the discipline provisions in and of themselves are highly complex, they really require separate commentary, and therefore, will not be addressed in this post. In addition, while my blog is expected to be read with the understanding that I am usually making very general statements, this caution is especially important to remember when considering stay-put.
With this caveat in mind, what does 1415 (j) mean in layman’s terms?
Basically, “stay-put” means that, in the event that a parent disputes the appropriateness of the special education program recommended for their child by the school, if they initiate a procedure outlined in the procedural safeguards (e.g. Mediation, a Due Process Complaint, and appeals to state or federal court), the student is mandated to remain in the last agreed upon placement.
The whole point is to maintain the status quo for the child during the pendency of the dispute, and to not disrupt his or her educational program while the adults fight it out.
At any time, the child’s stay-put placement can be altered by agreement between the parents and the local educational agency (referred to as the “LEA”), which is typically the local school district responsible for providing a Free and Appropriate Public Education to the student. However, stay-put can also be changed by agreement between the parents and the State educational agency (the “SEA”). This usually happens when a Due Process Hearing is brought, and the State’s Impartial Hearing Officer orders the change in placement that the parents requested. When that occurs, the new placement ordered by the Hearing Officer becomes the child’s stay-put placement, even if the school district appeals the decision. 34 USC 300.518.
Stay-put can become an essential protection if you agree with a program provided to your child with disabilities, and the school district later wants to change it.
The two most common factual scenarios where stay-put might have to be invoked is (other than disciplinary cases) are 1) when a student is placed in a private special education school by the IEP, and after some period of time the school district wants to bring the child back to the public schools; and 2) when a student is attending a less restrictive program and the school district wants to remove the child to a more restrictive program against the parents’ wishes.
Any time your school district wants to change your child’s placement and you disagree, stay-put might be implicated and you need to act immediately!
If you attend an IEP meeting at which a change in placement is recommended and you dispute it, make it clear at that meeting that you are not agreeing to it and ask that the stay-put placement be honored. That, in and of itself, will not necessarily protect you, though, as you will likely have to initiate a Hearing or Mediation to formally trigger the dispute. Believe it or not, a change in placement includes a disagreement about whether your child should graduate. In my experience, this is absolutely one of those times you would be wise to at least be consulting with a special education attorney.
Be especially careful of signing any documents which either “waive” your rights under stay-put, or which states that you agree that a certain placement is your child’s stay-put placement, unless you have been properly advised.
Since stay-put is such a strong right, most settlement agreements which are signed between parents and school districts will have a paragraph or language in them that defines what the student’s pendency placement is in the event of a future dispute. Having reviewed hundreds and hundreds of special education settlement agreements over the years here in Connecticut, I’d be hard-pressed to think of a single one that didn’t state what the child’s stay-put placement was agreed to be. You can lose valuable time and tremendous leverage if you don’t act promptly to enforce a stay-put placement; don’t let your rights slip away because you were unaware of its importance.