Wednesday, September 6, 2017
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. It only applies when a due process hearing is pending.
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. CS by Julia V v Lansing Sch Dist #158 115 LRP 31079 (ND Ill 1/23/15) quoting John M, court held that a stay put educational placement falls somewhere between the physical school attended by the child and the abstract goals of his IEP and courts use a fact-driven approach to determine whether a change of placement has occurred. Here court found agreed upon placement was stay put.
In other 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.
MR & JR ex rel ER v. Ridley Sch Dist 744 F.3d 112, 62 IDELR 251 (3d Cir 2/20/14) Third Circuit held that stay put applies through the final resolution of the case. The Third Circuit held that stay put does not end with a district court decision adverse to the parents, but continues through the appeals process. Thus where an IDEA ho approves a unilateral placement by a parent, stay put takes effect and remains until the appeals are over. Reversal by a district court of a ho decision that the parent’s appropriate placement is necessary to meet the child’s needs does not release the school district’s obligation to pay until the appeal is concluded because stay put accrues when the dispute arises- not when the parent’s request reimbursement. The premise of IDEA is that parents and schools working together is the ideal way to reach the statutory goal of FAPE for every child, but Congress recognized that the collaborative process may break down. Stay put maintains the educational status quo. To determine the then current educational placement, courts look at the IEP actually functioning when stay put is invoked. Parents do not have to request stay put or reimbursement for stay put to apply(NOTE: The U S Supreme Court flirted with the notion of reviewing this case and requested a brief from the Solicitor General, but recently decided not to decide this one.) See our post on the Supreme Court denial of certiorari here.
Doe ex rel Doe v East Lyme Bd of Educ 790 F.3d 440, 65 IDELR 255 (Second Cir 6/26/15) Parent argued that SD violated stay put by failing to provide the related services of speech therapy and OT. District court agreed but limited relief only to money that the parent had already paid out for the related services to avoid awarding money damages which are not available under IDEA. Second Circuit reversed holding that the parent was entitled to the full value of the related services.