Stay Put

Published on September 30, 2009 by Jennifer Laviano

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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.

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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.

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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.

8 Responses to Stay Put

  1. Jennifer Moss
    October 5th, 2009 | 8:15 am

    My daughter is at home with me because the Administrative Law Judge put stay put at the more restrictive environment at the Intermediate School Districts center based program. I did not sign away on her placement, but had agreed several month’s earlier to place her there for ESY only and that was where she was when I filed my due process request based on a later IEP. So now my daughter is home with me and is losing out.

  2. K. Sullivan
    June 30th, 2010 | 3:33 pm

    My child is aging out of his current (out of district) program. My public school system wants him to come back (I do not agree) If I were to implement “stay put”, where would my child go to school? Do I have the right of unilaterally place him in a similar program that does provide his grade level? Can the school force me in sending him back to the public school until this is resolved? If so wouldn’t that change his placement from out-of-district to in-district? I would like to see him continue in a program that meets his needs and where he can continue to be successful.
    Someone please help me figure this out.

  3. Jennifer Laviano
    June 30th, 2010 | 8:34 pm

    Your example is a tough one, and the cases are all over the place on situations where a child “ages out” of an agreed upon placement. I would suggest you contact an attorney in your State to see whether you need to act quickly to preserve your right to a similar out of district placement, as there are some cases that would support the argument that the district would have to find a similar program to the one he’s in. But you really need to see what the status of the law is in your State; many parents’ attorneys will not charge for the initial consultation so I think it would be safest to look into the local precedent. Stay Put cases are VERY “fact specific” and therefore it is important that you get the advice of someone local. Best of luck to you, and thanks for reading the blog!

  4. Heidi Dragomir
    August 7th, 2010 | 7:27 am

    My Daughter has been in her home town school district from K-2. In 2nd grade the IEP meeting fell flat prior to discussions regarding a potential change in placement. I filed the Due Process suggested by the special ed. director in regards to disagreement regarding ed. content issues not placement. Because I filed the DP same day as IEP meeting that was not completed stay put went into effect. The day before school started for 3rd grade the school told us we were to go to an out of district school but that her placement would not change. She went there becuase we were excluded from her regular school. This year we are still in the same legal process started when my daughter was in 2nd grade but now is entering 4 grade. Tired of being pushed around by the school I am taking her back to her regular school this year and I know they will exclude us again. Where can I find the evidence that stay put includes change in school assaignment?

  5. Jennifer Laviano
    September 24th, 2010 | 6:33 pm

    While there is not a profession out there that is free of those without scruples, I believe this comment both simplifies the situation and is misguided. In fact, the first sign in my book NOT to use a psychologist (or any other expert for that matter) is if I am told that they will write what I want them to. I think these are the exception, not the rule, and I certainly don’t think it’s fair to suggest that parents are looking to have their kids labeled without reason. Please read my blog on Special Education Munchausen’s for more on this. Thanks for reading.

  6. jacquie
    November 23rd, 2011 | 8:49 am

    Will it require an attorney before my school district is required to invoke “stay put”? My daughters current placement is the regular classroom. The district will have a meeting in a week where the plan to place her in a self contained classroom. New construction is taking place at the school district and in december or after december ( a month away) the facilities will be much better and I will be more in acceptance of their placement. However, due to the current facilities and the fact that severe and mild students are placed together in a small room, I am against placement. I do not want to fight with the district and cause hard feelings, but I also do not want to place my daughter in those facilities before construction is complete. Will I need an attorney to keep a “stay put ” provision, or can this just be requested until the facilities are completed?

  7. Jennifer Laviano
    November 23rd, 2011 | 10:53 pm

    You do not need an attorney to invoke “stay put,” but in many circumstances you do need to proceed with a formal disagreement with the IEP proposed for your child to do so. I would suggest you ask your school district to voluntarily honor stay put at your IEP meeting, and then seek a mediation at minimum. Also, check with attorneys or advocates in your state about what local issues might be impacted. Be cautious, you don’t want to give up your stay put rights by failing to act! Most parents’ attorneys are willing to provide an initial consultation at no or low cost, so it is probably worth a phone call to make sure your child’s rights are protected. Good luck!

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