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| Seal of the United States Court of Appeals for the Seventh Circuit. (Photo credit: Wikipedia) |
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.
Stay Put
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.
I really appreciate SPED Law 101. I have worked in special education for 15 years, but rereading the exact wording of the law, with reference where to find it, and a couple of case law examples is exactly what I need to answer questions that come my way. I enjoy debating these issues with my colleagues but when it is important to know exactly what to do, this is invaluable. thanks!
ReplyDeleteThank you Anon,
DeleteI appreciate your kind words. This blog has a lot of great readers like you. Feedback is always appreciated.
JG