The “stay put” provision of IDEA is one of the law’s most important safeguards for parents of children receiving special education. In short, during the pendency of any due process proceedings, a parent may invoke stay put and the child will remain in the then-current educational placement. 20 U.S.C § 1414(j).
Why is the stay put provision so important? If a parent invokes stay put and a due process decision is appealed, it can take years before a case is resolved and during that time, the child maintains his or her educational placement due to the parent’s invocation of stay put. In situations where the child’s current placement was viewed as untenable, stay put was often used as a mechanism to bring the school district to the table to negotiate.
In a case that I had some opportunity to work on, N.E. v. Seattle School District (9th Cir. Nov. 17, 2016, No. 15-35910), the Ninth Circuit Appellant Court turned stay put on its head. The case involved a multi-stage Individualized Education Program (IEP) placement. The Court ruled that future placement, a placement that was never implemented, was the student’s stay put. For many decades, stay put has protected parents and their children. Now, due to the Ninth Circuit’s ruling, stay put is being weaponized by school districts against the very people it is supposed to protect, parents and their children. In Washington, we have seen school districts emboldened by the Ninth Circuit’s ruling; often playing fast and loose with changing a student’s placement and issuing Prior Written Notice.
With any luck, the Ninth Circuit’s ruling will be overturned. On April 24, 2017, N.E.’s attorneys petitioned the Supreme Court of the United States for review of the case. My hope is that parents and their children who require special education will not be subjected to this ruling for much longer. But for the immediate future, it is important that parents of children with an IEP are cognizant that the stay put landscape has changed significantly, and not for the better.
If your school district is considering a change in placement for your child and you do not support the new placement, it is important you retain a special education attorney very early on in the process. Due to the Ninth Circuit’s ruling, this is an unsettled area of the law and requires a skilled legal practitioner to navigate the issues.
Here are some helpful tips:
· Do not agree to a multi-phase or multi-stage IEP. Agreeing to a multi-phase IEP could result in your child's stay put placement being a placement he or she has never been in.
· Do not agree with the school district to “test” a different placement or “try” a different placement for your child. Doing so may result in the “test” placement being your child’s placement for the purpose of stay put.
· If the District intends to move forward with a change in placement, consult an attorney. Believe it or not, the Ninth Circuit’s ruling is causing special education attorneys to rightfully advise their clients to pull their children out of school. In certain instances, this may be the only way to maintain a student’s present stay put.