Know Your Child’s “Stay Put” Rights in Special Education

An important right that children classified with special needs have is the right to “stay put” in their educational program during any litigation between the parents and the school.  This can be extremely important if the school is trying over the objections of the parents to take away important services, or is seeking to move the child to a different type of program.  The “stay put” rights can at least continue to provide the disputed services until the litigation is resolved.

The intent of the “stay put” provision is to protect the child.  Absent that right, the child could be moved back and forth from program to program during the course of a litigation through rulings and appeals, and yet again when the litigation is concluded.  The academic and emotional disruption if that were allowed could be significant.

Most important for parents to understand, is that such rights cannot be invoked unless they formally file for Due Process or mediation within a VERY SHORT period of their receipt of the formal proposal from the District to change the program.  In New Jersey, that period is fifteen days from receipt of the proposed IEP.  In Pennsylvania, it is only ten days from receipt of the NOREP.

If a parent fails to file before those short periods expire, the newly proposed program goes into effect and becomes the “stay put” program going forward – even if the parents do not sign the documents or otherwise refuse to give consent.  Many parents mistakenly believe that their verbal or written objections are sufficient to invoke “stay put,” only to learn to their dismay that the program has been changed.  Once that occurs, they can still litigate and obtain a ruling to change the program back to what it was, but their child will in the meantime be placed in the new program.

A recent case from the Third Circuit Court of Appeals has further clarified your child’s stay put rights – to reaffirm that stay put rights do not disappear or change during a litigation in which a lower hearing ruling favors one party and an appellate ruling favors the other.  For example, even if the first level hearing rules that the change in programming should go forward, if the parent appeals to the next level, the child remains in the initial “stay put” program.  This applies at least through appeal to the Circuit Court level.  See, M.R. v. Ridley Sch. Dist., No. 12-4137 (Feb. 20, 2014), http://www2.ca3.uscourts.gov/opinarch/124137p.pdf

“Stay put” rights do have nuances that can on some occasions be complicated, and whether to invoke such rights is an important strategic decision that varies depending on circumstances.  Please contact my office if you have any questions about this important right.

Jerry

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