You have exhausted your disagreement ARDs, you have used up your recesses and now you don’t know what to do:
“Stay Put” provision - What they are, how they work, and how to use them!
You have disagreed in part or in whole with the ARD/IEP committee’s proposed changes to your child’s IEP, programming, placement, or services. You requested and have taken the 10 day recess. When you come back together, as a committee, all parties still cannot agree on the changes. If an agreement can not be reached, the school is within its right to choose to implement the changes to the IEP, programming, services, etc. that they have determined are needed. You want what you believe is best for your child. How should you proceed? Is there another option? The answer is yes, there is another option.
First, do not waive your 5 day waiting period. When the committee introduces the 5 day waiting period at the end of the meeting, as the parent, guardian, or legal caregiver, can waive those 5 days and implement the program immediately. Those 5 days are there to help give the committee time to think about and review the meeting minutes, changes in services and/or goals, and still be able to make changes before implementation. In this case, do NOT waive that 5 day waiting period. During those 5 days, you will work on what is known as the “stay put” provision in IDEA.
Stay put.
Also known as a pendency proceeding, the Stay Put provision in IDEA allows your student to “stay put” and continue to receive the same services they were receiving prior to the proposed changes while you and the school complete a process. To prevent the school from implementing the proposed changes to the IEP, you must move quickly by following the process and requesting “stay put”.
In Texas, your first step would be to file for a request for a due process hearing with TEA or the Texas Education Agency, asking for a “stay put” before the IEP changes go into effect (5 days after your final disagreement ARD meeting). Again, make sure that you do NOT waive the 5 day waiting period.
The “stay put” request makes it so that the last IEP, the one that was utilized prior to the proposed IEP changes, will remain in effect for the months it may take for the disagreement to be sorted out, investigated, or mediated by an Independent Hearing Office (IHO). During that time the school can’t change the student’s IEP. It must “stay put” until the situation is resolved. The IHO is an “impartial neutral” third party with knowledge of special education laws, and has the authority to determine what is educationally appropriate for the student.
When you invoke the “stay put” provision, your child’s current placement and IEP can remain the same until you and the school resolve the disagreement.
BUT…
Should the school feel that a “stay put” provision could result in harm to your child or to others, the school can move your child to another program, or more restrictive environment, for up to 45 school days, even if you disagree with it.
During that time, the school is required to provide services designed to address the behavioral problems and work to improve them.
** It’s important to note here that, should you choose to enact the “stay put” provision and process you have the right to represent yourselves in the proceedings; however, it is encouraged that you seek the advice or representation of legal counsel who specializes in special education law in your state. Special Education Due Process hearings can be complex, and administratively heavy, in which the rules of procedure, discovery, and evidence apply.