Your Child’s Right to Remain In His Placement Under The “Stay Put” Provision

I just attended my son’s IEP and the school district wants to change his placement for next year. I don’t agree with the changes and want my child to continue with his one-to-one aide in the general education setting. I don’t want to sign this IEP and I believe that the school district may change his placement without my consent.

If the school district intends to change your child’s placement without your consent than you need to become acquainted with the “stay-put” provision of the IDEA. If you understand “stay-put” than you may be able to preserve your child’s placement while negotiating a solution.

The IDEA Stay-Put Provision
Federal and state law provides that a special education student is entitled to remain in his or her “current educational placement” pending the completion of due process hearing procedures unless the parties agree to an interim placement. This is referred to as the “stay-put” provision of the IDEA (See Section 1415(j) entitled Maintenance of Current Educational Placement).

In order to take advantage of the stay-put provision there needs to be an ongoing proceeding in the form of: a) mediation; b) due process; 3) state administrative review, and 4) a civil action begun by a complaint under the IDEA.

The “stay-put” provision functions as an automatic preliminary injunction during these proceedings. A preliminary injunction is a device used to maintain the status quo while the parties are engaged in proceedings. The “stay-put” provision is automatic in the sense that the moving party (the party asking for the injunction) does not need to prove the usual requirements for a preliminary injunction such as irreparable damage and likelihood of success on the merits. As you can imagine, this is a powerful tool and it was intended to be so.

What is My Child’s Current Education Placement?
The current educational placement is typically the placement called for in the student’s IEP being implemented prior to the dispute. In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs, as specified in the [IEP].”  (Cal. Code Regs., tit. 5, § 3042.) Essentially, placement is not simply a place. It is that collection of services that make it possible for your child to continue functioning in his educational environment as outlined in his IEP.

Preventing Abuse
Courts have recognized that due process proceedings are lengthy and have enforced the IDEA stay-put provision in an effort to avoid the harm that would naturally flow from the abrupt cessation of services provided to a special needs child. The stay-put provision was fashioned to prevent, as Justice Brennan pointed-out in Honig v. Doe, the “unilateral exclusion of disabled children” by the school district. The ninth circuit in Joshua A. v. Rocklin Unified School District further elucidates the reasoning behind the injunctive nature of the stay-put provision:

The fact that the stay put provision requires no specific showing on the part of the moving party, and no balancing of equities by the court, evidences Congress’s sense that there is a heightened risk of irreparable harm inherent in the premature removal of a disabled child to a potentially inappropriate educational setting. In light of this risk, the stay put provision acts as a powerful protective measure to prevent disruption of the child’s education throughout the dispute process.

The strong language used by the Supreme Court and the Ninth Circuit underscore the importance of the stay-put provision in the IDEA as a preventative measure against the unilateral removal of a disabled child from his or her placement.

Exceptions to Stay-Put Provision
There are exceptions which the school district can use to override the stay-put provision. In Honig v. Doe, the Supreme Court stated that a court can change a child’s placement notwithstanding the stay put provision only upon a showing “that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others.” Your child’s right to maintain his current placement may also be affected if he has engaged in a weapon or drug offense. (34 C.F.R. Sec. 300.530(g))

Ensuring Compliance
If you are concerned that the school district will not honor their obligations under Section 1415(j) than it would not be overly cautious to include a statement in your due process hearing request asking that the school district confirm your child’s right to maintain his current placement/services for the duration of the proceedings. Additionally, there are instances where filing a stay-put motion with the hearing office after filing your due process hearing request may be the best way to ensure compliance. (See Form 17 – last page of document entitled Form 17: Sample Motion For Stay Put)

Be Informed and Proceed Thoughtfully
While these strategies can be followed by non-lawyer parents, consulting with a special needs attorney before taking such measures will allow you to make more informed strategic decisions. There are many factors to consider before filing for a due process hearing and drafting a stay-put motion. This article is not meant to explore every possible outcome regarding the IDEA stay-put provision. An attorney specializing in the rights of children with special needs that is fully appraised of your particular situation will be able to best advise you regarding these important decisions. Many attorneys that represent special needs children will provide a free consultation.  

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