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Monday, March 10, 2014

IEPs and the Right to “Stay Put”

From Moor Law
Special Education Attorney Michelle Moor's Blog

January 31, 2014

One of the most important procedural protections available under the IDEA and Massachusetts special education law is known as a student’s right to “stay put”.

This right means that, in the event of dispute between a parent and district about a student’s educational needs, a parent can legally require the district to keep the student in their current educational program until the dispute is resolved.

The function of stay put is to enforce the status quo, and by doing so, to protect students from having their educational programs disrupted. This may sound a little complicated but asserting stay put is actually pretty straight-forward.

Consider the following illustration:

A parent of a seventh grader with dyslexia fully accepts their child’s IEP. The child enjoys a successful seventh grade year, and makes significant progress as a result of being placed in a smaller language based classroom, and from receiving intensive reading services. When the Team meets to develop a new IEP for the student’s eighth grade year, the district argues that the student has made so much progress that she is now ready to move into a larger classroom and receive fewer services. Parent disagrees with the district and feels that their child is not ready to go into a less intensive program. What can the parent do?

In this case, the parent can inform the school district (in writing, hopefully) that she does not agree the proposed program is appropriate, and is asserting her child’s right to “stay put” in their current program. That’s it.

The result is that the school district must continue to provide the same services and placement for eighth grade that the student received in the seventh grade. The child’s educational program cannot be changed until either: (a) the parent and district agree on a new program; or (b) one of the parties files for a hearing at the BSEA, and a hearing officer orders a change to the child’s IEP.

(For readers outside of Massachusetts, please note that in other states parents may have to file for a due process hearing before they can invoke stay put).

A few more things to know about stay put:
  • Stay put applies to eligibility determinations. If a district finds that a student no longer requires an IEP, and a parent disagrees with this conclusion, then the parent can ask the district to continue to provide all the services offered in the child’s last accepted IEP until the eligibility dispute is resolved.
  • Stay put applies regardless of whether a child is attending an educational program that is in or out of their district. Stay put is available to all students who have are receiving services under an accepted IEP – it does not matter where the student is physically attending school. What matters is that, in the event of a dispute about the child’s needs, the district continues to provide the student with their current educational program until the dispute is resolved.
  • Stay put applies even when a student cannot remain in their current program. There are times when a parent wants to assert stay put but their child’s current program is no longer available (e.g., the program does not offer services beyond a certain grade, the school is closing, etc.). In these cases, hearing officers have found that districts must identify a “substantially similar” or “comparable” program to the student’s last accepted program.
  • Stay put applies to “extended year services”. In Massachusetts, Parents can assert stay put over a child’s last accepted summer program, in the event the district determines that the student no longer needs extended year programming for the following summer. 
Parents should keep in mind that stay put was designed to be a short-term protection. Relying on stay put year after year can become problematic. If a parent and a district are in disagreement about a student’s services, it is always a good idea for the parties to keep working together toward resolution.

Want to know more about stay put? Here are some useful links:
  • To go to the IDEA’s stay put provision, 20 U.S.C. § 1415(j), click here.
  • To see Massachusetts’ stay put provision, 603 CMR 28.07, click here.
  • To see a recent BSEA decision interpreting a district’s stay put obligation, click here.

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