"Stay Put" in Special Education

Prior to changing any student's education program, the Individuals with Disabilities Education Act ("IDEA") requires that the district provide parents with written notice of the proposed change. In New Jersey, the district must provide the parents with the requisite notice at least 15 calendar days prior to the proposed change. In Pennsylvania, the district must provide the parents with written notice at least 10 calendar days in advance of the change. Often, this notice is provided to the parents in the form of the Individualized Education Plan ("IEP").

If the parents disagree with the proposed change to the student's program, they can prevent the program change by filing a Petition for Mediation and Due Process ("Due Process petition") prior to the expiration of the time period allotted. This act of filing the Due Process petition invokes a provision in the IDEA called "Stay Put" or "Pendency".

The "stay put" provision states that during the pendency of any due process proceedings, the child shall remain in the then-current educational placement. 20 U.S.C. § 1415 (j). In other words, if the parents file a Due Process petition within the requisite time period, the district must maintain the last agreed upon program until the dispute is resolved. If the parents do not take any action within the time period allotted, the program will automatically go into effect regardless of whether the parents provided consent to implement the IEP. (*Note that this does not apply to initial IEPs which require parental consent to be implemented).

This issue often arises when a district proposes changing a student's placement from an out of district setting to an in-district program or reducing the duration and/or frequency that a related service (e.g. extended school day, extended school year, Speech/Language, Occupational Therapy, etc.) is provided. In those instances, parents may invoke the "stay put" provision by filling a due process petition within the time period allotted. By doing so, the district must maintain the child's program until the dispute is resolved -- whether it be a week, a month, 6 months later or a year later.

Freeman Law Offices, LLC is available to help you file the Petition for Mediation and Due Process to maintain your child's program. Contact us today by calling (609) 454-5609 or emailing us using the "Contact Us" form on our website.