By Elizabeth Athos, Esq. Education Law Center
When a parent disagrees with a change to their child’s educational classification, program or placement that has been proposed by the school district, they can stop this change from going into effect – and preserve the status-quo – until the disagreement is resolved. This can be done by making a request for a mediation conference or due process hearing. This is an important right under special education law known as “stay-put.” This means the child “stays put” in their program. The child’s current educational placement for purposes of stay-put is generally presumed to be the last agreed-upon placement.
For example:
On March 12, 2019, the parent and school district agreed to amend the student’s Individualized Education Program (IEP) to provide for home instruction through the end of the school year in June 2019. On June 26, 2019, a new IEP was developed that provided for an out-of-district placement starting in September 2019. The parent was given written notice of this proposed change on that same day. On August 24, 2019, the parent filed a request for a due process hearing objecting to the proposed out-of-district placement. In those circumstances, the last agreed-upon placement – home instruction – would be the student’s stay-put placement.
The right for a student to “stay-put” in their current educational placement happens automatically when a parent requests a mediation conference or due process hearing, as long as certain things happen:
- The parent must file the request for mediation or due process with New Jersey Department of Education’s Office of Special Education Policy and Dispute Resolution (SPDR, formerly known as OSEP);
- The request must include all required information and the parents must send a copy to the Superintendent of the student’s school district; and
- None of the exceptions to stay-put apply.
SPDR has a model form that can be used to request mediation or due process. Click here. Scroll down to the Request for Mediation/Due Process bullet (shown below) and click on “23 kb Word” to access the form in English.
- Request for Mediation/ Due Process (23 kb Word)
SOLICITUD DE LOS PADRES PARA MEDIACION/AUDIENCA DE DEBIDO PROCESO/AUDIENCIA DE DEBIDO PROCESO EXPEDITIVA (Parental Request for Mediation/Due Process Hearing/expedited Due Process Hearing)
The webpage and form include instructions for filing with SPDR by mail or by email.
Except for the initial IEP, school districts can implement IEP changes without parental consent as long as they provide a minimum of 15 days prior written notice. This means that if a parent receives written notice of a change and does not take action to dispute it by requesting mediation or due process, the change can go into effect after 15 days. Often, districts use a proposed IEP to provide the required written notice.
When the school district intends to change a student’s classification, program, or placement as soon as the 15-calendar day notice period has passed, the parent can avoid disputes over what constitutes the current educational placement by filing for mediation or due process before the change actually takes place.
There is an exception to stay-put for several serious disciplinary offenses involving drugs, weapons, or injury. When this is the case, the student can be placed in a 45-day interim placement. The other exceptions to stay-put are when the parent and the school district agree to make changes to a student’s classification, program, or placement, or when an Administrative Law Judge has issued an emergent relief order allowing the change.
When stay-put applies, no change can be made to a student’s classification, program, or placement without a parent’s consent until the mediation or due process case is concluded.
(Content provided by The Education Law Center)
