Stay Put 101
The “stay put” provision of IDEA is one of the most important procedural safeguards to protect the rights of children with disabilities and their parents when disagreements occur with the school. Stay put can be invoked when you dispute a change that the school or school district wants to make to your child’s educational placement, allowing your child to do just that: stay put in the current educational placement and continue receiving the same services until the dispute is resolved.
The stay put provision is an important advocacy tool for parents; it ensures that your voice holds weight when it comes to your child’s education. To look at when to invoke stay put, when it doesn’t apply, what it means to go to due process, the difference between placement and location, and what to consider before signing an agreement, we sat down with Kelly Rain Collin, EdM, education consultant, advocate, and director of Healthy Minds Consulting, as well as Undivided Education Advocate Lisa Carey.
What is stay put in special education?
Under Part B, Section 1415 of IDEA, the stay put provision states, “During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.”
Translation: during a dispute between the school district and the parents, the child remains in the last agreed-upon educational placement until those disputes are resolved. Essentially, the stay put provision protects a child from being moved back and forth between placements, and centers consistency in a child’s educational program.
In this clip, Carey explains the basics of stay put:
Your child’s IEP outlines the services and supports that the school or district will provide, including educational programs, placement, related services, and accommodations and modifications they are currently receiving. If you disagree with the school’s offer during an IEP meeting and you are in the state of California, you can refuse to sign the new IEP, in which case the old IEP still applies, including the goals. In some states refusing to sign does not stop the new IEP from going into effect, and you’ll have to start due process in order to invoke stay put.
Stay put must be invoked before any changes in the IEP are put into effect. If the school district proposes any changes to the IEP — including the student’s special education eligibility category, assessment results, placement, or services — IDEA requires that the school provide parents with a written notice (in their native language) of the proposed change. This is called a “prior written notice (PWN),” and it must include:
- A description of the action being suggested or refused by the school district
- An explanation of why the district suggests or refuses to take the action
- A description of each evaluation procedure, assessment, record, or report the district used as a basis for the suggested or refused action
- A statement that the parents of a child with a disability have protection under the procedural safeguards, and that a copy of a description of the procedural safeguards can be obtained if this notice is not an initial referral for evaluation
- Sources that parents can contact to get assistance in understanding the procedural safeguards
- A description of options considered by the IEP team and the reason why those options were rejected
- A description of the factors that are relevant to the district’s proposal or refusal
After receiving the prior written notice, you will need to take action before the implementation date of the new IEP if you want to dispute the proposed changes (this timeline varies from state to state). This can mean filing for a due process hearing or requesting state mediation, both of which invoke the stay put provision.
How can I invoke my stay put rights?
There are two resolution options during which you can invoke stay put: state mediation and due process. Mediation gives parents the free-of-cost opportunity to resolve the disagreement with the school district with the help of a state-trained mediator. A due process hearing is a formal meeting to resolve the dispute and is presided over by a judge. (You can read our in-depth guide to due process in this article!)
In California, special education arbitration is handled by the Office of Administrative Hearings (OAH). Both sides make their case, and when the Administrative Law Judge makes a decision, it becomes an enforceable, public document. However, this decision often obligates the school district only until the next annual IEP.
Stay put may be invoked after:
- A parent disputes, in writing, the proposed changes made in a prior written notice document.
- A parent files a request for mediation or due process before the proposed implementation date listed in the PWN.
- In the state of California, stay put may also be invoked when a parent is disputing certain aspects of an IEP and has partially signed the rest.
- Before any changes to the IEP are implemented, you must be given a prior written notice (this varies from state to state — it’s 15 days’ notice in California). The timeline begins when the school district sends the written notice.
- Stay put remains active during any appeals process, which might take weeks, months, or even years from the initial proposed change.
- Usually, stay put will automatically go into effect when you file for due process or mediation; if it does not, an order would have to be made to the district during your filing of due process. Disability Rights California has a sample stay-put request letter that you can include when requesting mediation or due process.
For a more detailed summary of procedural safeguards and parental rights in special education, check out our article here!
Can an IEP stay in stay put forever?
When it comes to implementing an IEP, each state is different. Because California is a dual-consent state, the district cannot implement any new changes to an IEP without parental consent. However, some states can have “stipulations where the IEP goes into effect after a certain number of days unless the family files for due process,” Collin explains. “Others tend to come back to the IEP table repeatedly until an agreement is achieved or until one party files for due process.” She continues, “If the family disagrees with a portion of the IEP and documents that in the IEP, typically via the notes section, a parent attachment, or on the signature page of the document, then the next steps often depend on the state statutes.”
Collin tells us she has worked with some families in California who were able to remain in stay put for an unlimited amount of time after documenting their disagreement with the removal of a specific service (and repeating this disagreement at each subsequent IEP meeting). “Whether this is because the district chose not to file for due process on the issue or if it was a district oversight is unclear,” she says. Having said that, she cautions that “the district also has the option of filing for due process. If the district is able to successfully prove that their offer of FAPE is appropriate for the student, stay put ends. The same is true if the parents are requesting a change that the district does not find to be appropriate for the student. The student stays in the program described in the last agreed-upon IEP until both parties agree on changes or until a court rules on the situation.”
If you disagree with the proposed changes and the school does file for due process, you should hire an attorney and prepare your argument for why your child’s current placement is appropriate. Carey reminds us that a parent can also request alternative dispute resolution. In California, your Special Education Local Plan Area (SELPA) will assign a mediator to oversee the ADR, but the form your ADR takes will depend on your district and may include informal resolution meetings or facilitated IEPs. Having or agreeing to an ADR meeting, however, does not impact your parental rights to later utilize due process if your disagreement is not settled in the informal meeting.
When a family goes to a resolution meeting or mediation, either informally or formally, within a due process case, the resolution is often settled in a confidential agreement. Usually, there is a waiver of educational rights that precludes the family from going to due process for the rest of the year. The settlement usually lasts only until the next IEP. It is very important to ask about stay put when crafting the settlement. If you have the same disagreement with the district at the next IEP meeting, the stay put will still be the old IEP — the last one you signed. Any ground you won in the settlement is NOT covered by stay put.
What are the exceptions to stay put?
There are a few situations where stay put doesn’t apply, such as if a student doesn’t have an IEP, or if disciplinary actions are involved. If a student is dealing drugs, carrying weapons, or violating codes of conduct resulting in severe bodily harm, the school can change that student’s placement for up to 45 days. But during those 45 days, the school is required to provide services that address those behaviors and situations. (You can read more in our article about school discipline for students with disabilities.) Stay put also doesn’t apply when moving from Part C to Part B of IDEA because in this situation, there would be no “current IEP” with a “current educational placement” in which to stay put.
In this clip, Carey explains this and a few other exceptions to stay put:
What is the difference between placement and location in an IEP?
Can I partially sign an IEP?
In California, parents can provide partial consent to IEPs. But many families refuse to sign completely, or they file for due process and continue with a stay put IEP for years. The problem with refusing to sign, or with remaining on stay put, is that a student’s goals do not progress. Therefore, it is better to sign partially. If you sign a partial agreement, agreeing with most of the IEP but not certain components, then the parts of the IEP you agree with will be implemented while the others will remain on stay put.
“This is a right unique to California,” Carey says. Partial signing allows you to indicate what you agree with (i.e., new goals and services) and what you disagree with (i.e., placement). In this case, stay put only applies to the parts of the IEP that you agreed to. Carey explains:
Does stay put apply if I don’t agree with a specific provider?
What are my next steps?
There are many ways to approach and settle disputes. Because the law can be murky at times, here are a few tips from education attorney Ryan Ford to keep in mind:
- Consult with and retain a special education advocate or attorney early on in the process who can navigate these specific circumstances.
- Do not agree to a multi-phase IEP, as that could result in your child’s stay put placement being one that they have never actually been in. (A multi-stage IEP is one that is implemented over time, with one stage implemented first, and subsequent stages implemented later. If, for example, you consent to stage 1 of the IEP, and it is implemented, but dispute stage 2, the court may view the partially implemented, multi-stage IEP as a whole, and stage 2 as the child’s then-current educational placement, even if the child has never actually been in stage 2. You can read more about this situation in the case of N.E. v. Seattle School District.)
- Do not agree to “test” a new placement or service, as that could be used as your child’s last agreed-upon placement for stay put.
In this clip, Carey explains where you can go for help, including the importance of retaining advocates and attorneys: