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Wednesday, December 12, 2012
Special Education Law 101 - Part XII Stay Put
This is another post in our ongoing series on the basics of special education law. Please let us know how you are enjoying this series. We feel that this is a good introduction for newbies and a good refresher for seasoned pros.
Today we talk about the stay put provision. One of the basic concepts in this area of the law, yet also one of the most misunderstood.
IDEA § 615 (j) provides that (except in certain discipline cases), during the pendency of any due process or court proceedings pursuant to this section, unless the parties agree otherwise, the student ‘…shall remain in the then-current educational placement of the child…” This is commonly referred to as the stay put provision. The stay put placement is the last agreed upon IEP, unless the parties agree otherwise. See 34 C.F.R. § 300.518.
The Supreme Court interpreted and endorsed the stay put decision in the case of Honig v. Doe 484 U.S. 305, 108 S.Ct. 594, 559 IDELR 231 (1988). In that decision, the Supreme Court, noting the Congressional intent in preventing the exclusion of disabled students and reiterating the importance of the procedural safeguards under the IDEA, refused to read a dangerousness exception into the stay put provision. Honig v. Doe, supra. (NOTE; please note that IDEA’04 now has provisions pertaining to danger/injury.)
John M. by Christine M & Michael M v. Bd of Educ of the Evanston Township HS Dist No. 202 502 F.3d 708, 48 IDELR 177 (7th Cir. 9/17/7) The Seventh Circuit noted that determining “then current educational placement’ is an inexact science requiring a fact driven approach. Respect for the purpose of the stay put provision requires focus upon the child’s educational needs so the educational status quo for a “growing, learning, young person” often makes rigid adherence to a particular educational methodology an impossibility. Stay put, therefore, requires flexibility in interpreting the educational placement per the last agreed upon IEP and flexibility concerning the child’s needs.
In other recent Circuit Court decisions: KD by CL v. Dept of Educ, State of Hawaii 58 IDELR 2 (9th Cir 12/27/11) Ninth Circuit held that the language of a settlement agreement prevented a private school from being the “as agreed” stay put placement. The agreement provided that the LEA would pay for a private school program for a specific period of time rather than merely agreeing to place the child in a private school. Therefore, LEA had no obligation to pay for the private school after the period of time designated in the agreement lapsed; and in Anchorage Sch Dist v. MP by MP 689 F.3d 1047, 59 IDELR 91 (9th Cir 7/19/12) Ninth Circuit ruled that the school district denied FAPE by failing to conduct IEPT meetings at least once per year despite a number of dphs and complaints pending by the parents. Stay put did apply, but stay put only affects the educational program in general, and the IEPT could have discussed other items.