The “Stay Put” Provision Explained

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As a parent of a child with special needs, there is so much to learn about the laws and guidelines regarding your child’s education.  Not only are you trying to grasp what rights your child has but you must extrapolate the meaning of the terms within those laws and guidelines.  One term that you should understand is what the Individuals with Disabilities Education Act (IDEA) calls the “Stay Put” provision and how to utilize it.   

According to IDEA 20 U.S.C. § 1415 (j), the “stay put” provision states that unless the parents and the school district otherwise agree, the placement in the last agreed upon IEP shall remain the same during any disputes and until those disputes are resolved.  Essentially, when there is a dispute between parents and the school district, the “stay put” provision protects a child from going back and forth between one educational program or placement to another.  The child remains in the current placement he or she was in until the dispute is resolved or concluded.

Let us go back a step and remember the process for how to make a changes to programming or placement.  Your child’s current IEP lays out the educational program, placement, services, accommodations and modifications in place at that present time.  If the school district wishes to make any changes to any of the aforementioned, the IDEA requires that the district provide parents with written notice of the proposed change. Your state laws will dictate how many calendar days the notice needs to be provided prior to the proposed changes.  Here in Pennsylvania, the district must provide parents with written notice at least 10 calendar days prior to the changes.  In New Jersey, the district must provide parents with written notice at least 15 calendar days prior to the changes. 

If a parent disagrees with the proposed changes, they can challenge the proposed changes by filing a Due Process petition before the expiration of the time period allotted in your state statute.  Not to complicate things but some states allow mediation and other judicial proceedings to invoke the “stay put” provision as well.  Check your state guidelines to determine if you fall under this inclusion. 

The filing of a Due Process petition (or other proceeding under your state statute) invokes the “stay put” provision and the current educational program stays in place until the dispute is resolved. This can be a matter of weeks or even years.  If a parent invokes “stay put” and a Due Process decision is appealed, it can take years before that case is resolved and during that time, the child maintains his or her educational placement.

If a parent agrees with the changes OR if they disagree but fail to file a Due Process petition before the expiration of the state time frame, the newly proposed program will automatically go into effect regardless of whether the parents provided consent or not.  This is important – even if the parents do not sign the newly 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 now be the most current IEP in place.   Even if you are just one day late with your filing, your child may lose their “stay put” rights.

However, if the dispute is about the parent’s belief that more services are required then are in the current IEP, the “stay put” provision is not something parents need to invoke because there is no back and forth to which the child will be subjected.  All that is at issue is adding more services to the IEP, not taking away services or changing placement. 

So essentially if there are proposed changes to a student’s educational program, parents better act quickly if they disagree with those changes.  But what constitutes an “educational program”? According to 20 U.S.C. 1415(j); 34 CFR 300.518, no change may be made to a child’s classification, program set out in the child’s IEP or placement unless both parties agree, or emergent relief is granted. 

For example, the school district cannot simply change your child’s classification on the IEP.  If they were Speech and Language, they cannot change your child to OHI. Most certainly a district cannot declassify your child unilaterally if you invoked “stay put”.  With regard to placement, this issue often arises for example when a district proposes changing a student’s placement from an out of district setting back to an in-district program.  Programming changes under the “stay put” statue for example would be a reduction of the duration and/or frequency that a related service (1:1 aide, extended school day, extended school year, Speech/Language, Occupational Therapy, etc.) is provided. 

All changes regarding classification, programming or placement must be agreed up before going into effect if you filed for Due Process, mediation or other judicial proceeding within the appropriate time frame in your state statute.  Stay strong at IEP meetings and be sure to always read your Procedural Safeguards.  If you receive any documentation about changing placement or programming, know your rights and file for mediation, Due Process or other judicial proceeding before that short state deadline.  Most importantly, continue to be your child’s best advocate and know your state statutes!