Special Education Tip-of-the-Day: Stay Put

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by Jessica Jansepar Ross, Attorney

In today’s blog, ACDL provides general legal information about the IDEA’s “stay put” protection. In short, the IDEA requires that a child remain in their “current educational placement” during the pendency of a Due Process Hearing (discussed in detail later this week), unless parents agree otherwise. This provides consistency in the services that the child receives while the parent and the school district work to resolve disputes over issues such as appropriate IEP services and educational placement. Today we will look at what counts as a “current educational placement,” when stay-put applies, and the exception for changes in placement for discipline reasons.

Courts determine what regulations, like the IDEA, mean when applied in legal disputes. Circuit courts throughout the country differ in how they apply stay put to specific cases. This blog focuses on how the Ninth Circuit Court of Appeals views stay put. The law may be different for people living outside of Arizona.

The Concept of Stay Put

The IDEA requires that students remain in their current educational placement while a due process hearing and any appeals take place, unless the parent and school district agree to a different placement. According to the Arizona Department of Education (ADE), the obligation to keep the child in the current placement is generally interpreted to mean that school districts must keep the child in the then-current placement, not in the placement that the parent may be challenging. The stay put protection applies when a parent files a Due Process Hearing Complaint. It does not apply to the filing of State Complaints, Requests for Mediation, IEP Meetings, or any other methods for resolving disputes.

While the regulations do not define “current educational placement,” there are current interpretations based on court cases and agency guidance. Placement typically refers to the program that a student receives in an educational environment, such as a general education or self-contained classroom, rather than the location where services take place (e.g. John Smith Elementary). This mean that a change of placement may occur when there is a significant change to the child’s program, such as taking away a one-on-one aide, even if the child stays in the same class.[1]

However, the decision of a hearing officer may alter the stay put placement. The Ninth Circuit ruled, in one case, that a hearing officer’s determination that a unilateral placement by the parent was appropriate made that placement the “stay put” placement throughout the resolution of the litigation.[2]

Stay Put Applies to Educational Providers, Not Parents

The stay put provision only limits the actions of educational providers, such as school districts and charter schools. It does not stop parents from agreeing with the school district to a different placement, or from removing their child and placing them in a different school district or in private school (this step should not be taken lightly and specific procedures apply to that decision).

How Stay Put is Different When Discipline is Involved

When an IEP team decides to change the placement of a student with a disability (for example, by suspending them and placing them in an alternate educational setting, such as homebound services), the parent may challenge the decision in a due process hearing. However, the student will stay in the alternate setting until the hearing officer makes a decision, the end of the suspension, or the parties agree to another appropriate placement, whichever happens first. This means that, while filing a due process complaint may be the appropriate way to address a disciplinary change of placement with which a parent disagrees, doing so will not necessarily return the child to the classroom.

In Arizona, parents file Due Process Hearing complaints with the Arizona Department of Education. You can learn more about that process here. The use of stay put is a complex area of the law, so if you are considering filing a due process complaint to trigger “stay put” protections, you should discuss this option with an attorney.

Tomorrow’s Tip-of-the-Day: Independent Educational Evaluations (IEE).

DISCLAIMER:

THIS BLOG/WEB SITE IS MADE AVAILABLE BY ACDL FOR EDUCATIONAL PURPOSES ONLY AS WELL AS TO GIVE YOU GENERAL INFORMATION AND A GENERAL UNDERSTANDING OF THE LAW, NOT TO PROVIDE SPECIFIC LEGAL ADVICE. BY USING THIS BLOG SITE YOU UNDERSTAND THAT THERE IS NO ATTORNEY CLIENT RELATIONSHIP BETWEEN YOU AND ACDL. THE BLOG/WEB SITE SHOULD NOT BE USED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE FROM A LICENSED PROFESSIONAL ATTORNEY IN YOUR STATE.

 

[1]SeeN.D. ex rel. parents v. Hawaii Dept. of Educ., 600 F.3d 1104, 1116 (9th Cir. 2010).

[2]Anchorage Sch. Dist. v. M.G., 72 IDELR 233 (9th Cir. 2018, unpublished).

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