What is "Stay Put" and why is it important?
One of the most important protections or "Procedural Safeguards" for students in the Individuals with Disabilities Education Act or IDEA is the maintenance of current educational placement, often called "stay put."
The IDEA requires that the student remain in the "then-current educational placement" for the duration of all IDEA proceedings. Stay put protects students while a dispute about their IEP is pending. This protection only applies if a due process complaint or other IDEA related proceeding has been filed. Also, the stay put protection does not apply to certain disciplinary actions, which will be the subject of another post.
Basically, the stay put provision prevents a school district from changing a student's placement during a "proceeding" under the IDEA unless the parent's consent to the change. It is one of the few times that the IDEA requires parental consent. So, if a school district proposes to change a student's placement with a new Individualized Education Program (IEP) a parent can prevent the district from doing so by filing a complaint such as a due process complaint.
So, assume your child has been placed in a private school by the district because of her disability and the district wants to return your child to a district school. If you disagree with the new placement, you can file a due process complaint to have a hearing officer decide what placement your daughter needs. If the due process complaint is filed before the new placement takes effect, your daughter can (and should) remain in the private school until the case is over. With stay put, the district would have to continue paying for the private school throughout the case.
If the new placement does take effect before the due process complaint is filed, the public school placement would become the "then-current educational placement" and the stay put protection would not apply to keep your daughter in the private school.
How long does the protection last? As long as the proceeding lasts.
In the Ninth Circuit Court of Appeals, which includes Arizona, California, Oregon, Washington, Idaho, Montana, Nevada, Alaska and Hawaii, the answer is until the case is completely resolved. So, if you file a due process complaint that goes to a due process hearing and goes through appeals to the United States District Court, the Court of Appeals or even the Supreme Court, your child would remain in the same placement because it is the same proceeding unless you consented to a change in the placement.
Other Circuits that have addressed this issue have interpreted the IDEA in the same way. This makes sense because it is the same "proceeding," meaning the same case.
The National School Board Association wants to have that changed. This week they filed a Brief urging the United States Supreme Court to take an appeal from a Third Circuit case which held that stay put applies throughout the appeals process. The NSBA wants the Supreme Court to reverse and find that the "proceeding" ends if a District Court rules against a parent on their claim.
This is such an important protection for students with disabilities, it is imperative that the stay put provision continues to protect students throughout the entire case challenging a district's decision -- even through all appeals of the case. Hopefully the Supreme Court will either refuse to hear the appeal or affirm the decisions of the Ninth and Third Circuits.
The Law Office of Richard J. Murphy, PLC will continue to monitor this case.