By JEFFREY A. GOTTLIEB, ESQ.
I am always bewildered at the number of parents with children that qualify for an Independent Educational Program (“IEP”); where those parents do not understand the concept of “Stay Put.”
Put simply, stay put is one of the most powerful tools a parent has to control proposed changes to the placement and services offered by a school district at an IEP meeting. It is the power of a parent to say NO!
First, context. An IEP meeting is supposed to be a team meeting. The reality is that anything offered in writing at an IEP meeting is ultimately controlled by the school district. Parents DO HAVE significant influence by addressing what is in the best interests of their child; however, an IEP meeting is not a democratic event. However, parents have two critical tools at their disposal when the school district offers an inappropriate placement or scope of services; that is, stay put and due process. Due process often requires the services of an advocate or an attorney; it is where the parent litigates against the school district. In contrast, stay put is simply the power of expressing NO to either an entire IEP or specific components of an IEP; thereby taking away the power of the school district to implement its proposed changes to the child’s placement or scope of services; except by court order. That is, the unilateral power of a parent to stop inappropriate changes to an IEP.
When a parent takes the steps of imposing stay put the parent leverages that power to negotiate a better offer on behalf of their son or daughter. Stay put stops the school district from implementing specific changes. Thus, from a school district’s perspective the IEP is unresolved. School district administrators prefer certainty to uncertainty; thus, if the school district wants resolution it must either negotiate with the parent or litigate the matter.
From a legal perspective, under federal and state law, a special education student is entitled to remain in his current educational program pending the completion of a due process hearing; this entitlement is referred to as “stay put.” [20 U.S.C. § 1415(j); 34 C.F.R. § 300.51; Ed. Code §§ 48915.5, 56505]. For purposes of stay put, the current educational program is defined as the last agreed upon IEP implemented prior to the dispute arising [Thomas v. Cincinnati Bd. Of Educ. (6th Cir. 1999) 918 F.2d. 618, 625].
Stay put is not discretionary for a school district; it is a requirement. Most importantly, the purpose of stay put is to prevent a school district from unilaterally changing a student’s educational program without the parent’s consent [Honig v. Doe (1988) 484 U.S. 305,323]. Thus, even if a parent has not filed for a due process hearing, a school district generally cannot unilaterally change a special education child’s placement or scope of services except by the parent’s consent or a court order. There are always some legal exceptions to every general rule of law; for example, if a parent explicitly consented in a previous IEP that a specific service was to be terminated on a specific date and no longer to be provided, that situation under some circumstances can be an exception to “stay put.” However, more likely than not in most circumstances, stay put is operative when a parent simply expresses NO to an adverse offer by a school district.
Please note, that stay put should be expressly stated in writing by a parent, ideally within the IEP document.
As former first lady Nancy Reagan often expressed, simply say NO!
Please note, that this Newsbrief is a general explanation of the law and may not be appropriate for a unique set of circumstances. Attorney consultation should be considered.
PROVIDED BY SPECIAL EDUCATION ATTORNEY, JEFFREY A. GOTTLIEB, ESQ.
Serving Los Angeles and Orange County