Special Education Topic: Understanding “Stay-put” and What it Means for Your Child

Tuesday, 21 October 2003

The “Stay Put” Provision:

• During the pendency of any proceeding conducted pursuant to the Act, unless the state or local educational agency and the parents otherwise agree, a student with a disability shall remain in his or her then-current educational placement. (IDEA “stay put provision” as codified in 20 U.S.C. §1415(j).)
  
• The objective of stay put is to maintain stability and continuity for the student.

WARNING FOR PARENTS IN SETTLEMENTS:

• In settlement negotiations involving NPS or private school placements, school districts often push for a waiver of stay put. Parents should be wary of this and should not sign any agreement that waives stay put.
  
• Because stay put is interpreted as the last agreed upon placement, a placement that is operational because of a settlement agreement will operate as stay put in later disputes. For example, if you settle a case with the district and receive placement at an NPS for school year 1, and at the end of year 1, you have a dispute about placement, stay put for year 2 (until the dispute is resolved) would be the NPS.
  
• However, if you sign an agreement that waives stay put, this will not be the case. Instead, you will be back to square one and back in the school that you removed your child from in the first place.

What “Stay Put” means:

• The district must leave the student in her current educational placement and the student’s current IEP must be fully implemented (including related services).
  
• This applies from the time that the dispute arises (from the time that you request a hearing) until the dispute is resolved (all hearings and proceedings are completed or settled).
  
• Essentially, the school district is obligated to maintain the status quo. The “current educational placement” usually means the most recent agreed upon placement. This can be the placement in an IEP, in a mediation agreement, in a settlement agreement or in a Due Process hearing ordering either placement or reimbursement.
  
• The school district cannot unilaterally decide to change placement. Under the I.D.E.A., parents must be a part of any team / group that makes a placement decision about their child.
  
• In order to maintain stay put, the school district should provide a continuation of services, without a change in placement. Homebound instruction or in-home services can therefore result in the home environment being stay put.
  
• Change in personnel or service providers administering services does not necessarily violate stay put, so long as the services are still comparable.
  
• Likewise, stay put is not always location specific. If the setting of the “educational placement” can be substantially duplicated in another setting, then this would not violate stay put. For example, if the student must be relocated because the school closed or the classroom ceased to exist, this is allowable if the educational placement is duplicated in the new location.
  
• A particular ESY placement does not necessarily carry over as stay put for the regular school year. Instead, the district must continue the placement from the previous school year or the last agreed upon IEP. For example, if the parents agree to a SDC for the following school year, and ESY is to be home based instruction, stay put would be the SDC.
  
• If the dispute is over the initial public school placement (e.g. if the parents move the student from private school to public school), then there is technically no current placement to serve as stay put. The school district must place the student, with the parents permission, in the public school.
  
• If a district removes a student from the educational setting in violation of stay put, compensatory education may be an appropriate remedy.
  
• It may be that the then current educational placement is inappropriate for the student. If all parties agree that the placement is not appropriate, they may agree to an interim placement while the dispute is pending. Remember that the stay put provision allows for the agency and parents to “otherwise agree” on placement.

History:

• The Education for All Handicapped Children Act (EAHCA) included a provision that when there was a dispute between the parents and the school district regarding the placement of a child with a disability, the child was to stay in the current educational placement until the dispute was resolved. The intent behind stay-put was to ensure that disabled children did not have to wait outside of the educational setting during pendency of a dispute.

Problems with Implementation:

• Issues most commonly arise related to stay put in two situations.
  • First, what happens if the dispute arises at a time when the child is transitioning, for example from preschool to kindergarten or elementary to middle school? This makes it difficult to define the “then current educational placement.” Suppose, for example, if a child’s most recent agreed upon IEP placed him or her in a kindergarten half day SDC, and at the end of kindergarten the parents disagree with the district’s offer for the 1st grade year. Does this mean that stay put is in the kindergarten half-day class for the now 1st grade student?
    - Times of transition present difficult issues because the next grade may not have an identical educational placement to serve as stay put. Some Hearing Office decisions have held, for example, that a 5-year-old’s stay put placement was his preschool program during the pendency of the proceedings, even though the student would otherwise be transitioning into kindergarten. However, while stay put is setting specific, it may not be location specific. This means that the student may proceed to the corresponding classroom setting at the next grade level.
    
  • Second, are dangerous behavioral problems an exception to stay put? This situation arises when the district argues that maintaining the student in the then current educational placement would be dangerous to the student or others. Remember that the school district is allowed to use normal disciplinary procedures, as long as they comport with the IDEA. However, when the district suspends the student for more than 10 days, this would be considered a change in placement. Therefore, if the district were obligated to provide stay put, this obligation would assumedly be breached if the district moved the child or suspended him or her for 11 days or more.
    - Case law has held that the school district cannot unilaterally change the placement of the child for conduct arising out of the child’s disability. See Honig v. Doe. The school district can suspend the child for up to 10 days, but any change beyond that requires parent agreement or a court order. However, illegal drugs and weapon offenses allow for a 45-day alternative placement.

Carolina D. Watts, Advocate

Feel free to respond to this article or post questions on our message board.