Stay-Put Provision for Special Education Students

As IEP season is upon us, parents of children with special needs are reminded of the need to understand how to utilize the “Stay Put” provision in the IDEA.   This provision is intended to protect a child from being jerked back and forth between one educational program or placement and another during disputes between the Parents and their School Districts.   The provision provides that, unless the Parents and the District otherwise agree, the placement in the last existing IEP shall remain the same during any disputes unless and util those disputes are resolved or concluded.

This right is very important if your dispute involves the District taking important services away from your child, or is trying to move your child to a different placement over your objection.  For example, if the District decides at an IEP meeting to remove your child’s 1:1 aide on the grounds that they don’t believe he needs an aide anymore, and you disagree, the District will have to continue to provide the aide while the parties litigate the dispute if the Parent properly invokes “stay put.”  Absent this right, your child could lose critical services during the dispute, or be sent to an inappropriate placement during the dispute, and return only after the dispute was litigated to completion.  This back and forth of services or placement is what the provision was designed to eliminate.

If the dispute instead is about the Parent’s belief that more services are required then are in the current IEP, the “stay put” provision is not something the Parents need to invoke, because there is no back and forth to which the Child will be subjected.

The only way Parents can properly invoke the child’s “stay put” right is to file for mediation or due process within 15 days (in New Jersey) of their receipt of the new proposed IEP from the District which has removed the services at issue, or is placing the child elsewhere.   The reason the 15 day limit is important, is because after 15 days — even if the Parents do not sign the new proposed IEP — the new IEP goes into effect.  In that event, any “stay put” rights in any subsequent filing for mediation or Due Process will relate to the new IEP, because the new IEP will then be the last existing IEP.   If you are even one day late with your filing, your child may lose the right to “stay put.”

Thus, if you desire “stay put,” you must file for mediation or Due Process within the 15 day window.  If your issues do not require “stay put,” you can file for mediation or Due Process at any time.  The 15 day window does not bar you from filing at any later date.

Once invoked, the right to “stay put” continues in place even through any appeal process.  Thus, if the Parents win or lose at Due Process, the services continue if either party appeals that decision to a state or federal Court.  The same applies if either party appeals from that level court to the next higher appellate Court, and even through the Supreme Court of the United States.

This latter application of “stay put” throughout the appellate process is however currently under challenge by school districts before the United States Supreme Court in a case known as Ridley Sch. Dist. v. M.R., Dckt # 13-1547.  School board associations from around the country have filed briefs, arguing that “stay put” should end at the first trial level and not apply to appeals because otherwise it encourages parents to unreasonably drag out legal proceedings for the purpose of squeezing some extra services out of the District.

The Boards fail to point out, however, that the opposite is true — that absent “stay put” many Parents would abandon their claims if they lost on the first level regardless of the merits in an effort to spare the Child the back-and-forth disruption that could be forced upon their Child.  Under the view of the School Boards, a Child could be moved out of her placement if the parent loses on the first level but appeals, and then put back into the pre-existing placement if the parent prevails on appeal, removed again if the District wins on appeal on the next level, and returned yet again to the initial program if the Parent goes all the way to the Supreme Court and wins.  This kind of disruption could be devastating to fragile special needs children already struggling to learn, and is exactly what the provision is intended to prevent.  The school boards forget that the provision is in place for the Child’s protection, not for the parents or for school districts.

The US Solicitor’s General Office recently weighed in with a brief of its own – arguing that “stay put” has to apply throughout all appeals because the language of the provision refers to “concluded” and “resolved” and that no dispute can be said to be concluded if parities file appeals.

Stay strong at those IEP meetings.  Knowing your rights is your best source of strength.

The law firm of Mattleman, Weinroth & Miller, P.C., is composed of experienced attorneys throughout the states of New Jersey and Delaware. Please contact the office for a free initial consultation and get any questions answered regarding your specific case.