Question: My child has complicated issues and the district granted a 45 day placement for evaluation. I am not in agreement with what they have proposed. The 45 day placement is over and I wanted to reject their proposal to bring him back to district. I am told I have no stay put rights. Is this true?
Answer: Yes, it is true. There are no stay-put rights to a 45 day placement. Unlike what the name implies, 45 day placements are evaluations, not placements for IEP purposes. Your child's stay-put placement is the last placement you and the district both agreed to.
If you have more questions about special education law and need help advocating for the placement your child needs, contact the Boston area Law Office of Lillian E. Wong.
What is "Stay-Put"?
Stay-put is the right to keep your child in his or her current special education placement and/or receive your child's current special education services, even if the school proposes to change the placement or remove the services.
When Does "Stay-Put" Apply?
Stay-put only applies when the school has offered and the parent has accepted the previous placement and services. Therefore, there is no right to "stay-put" if the child has not been found eligible for special education, if the school is proposing an initial IEP, or if parents have always rejected the IEP proposal outright. In these situations, there is no "previously agreed-to" placement or services, so there are no stay-put rights.
Massachusetts vs. Federal Law
Under Federal law, stay-put rights apply only when parents have filed a due process hearing request. Massachusetts law provides more rights for parents and students. In Massachusetts, once the parents reject the IEP, they can invoke stay-put.
If you have questions about stay-put rights or need help navigating the special education process, contact the Boston area Law Office of Lillian E. Wong today.
Case Name: In re: Rick (BSEA #11-6535) Foxborough Public Schools
Decision Date: September 2, 2011
Hearing Officer: Raymond Oliver
Representation: Thomas Nuttall, School Attorney
Parents, Pro Se
Does school's proposed IEP provide a free appropriate public education (FAPE) in the least restrictive environment (LRE)?
Yes, the IEP provides FAPE. To quote the Hearing Officer, "I find that in all school areas, Rick is truly a success story." In response to Mother's previous multi-page IEP rejections the Hearing Officer writes, "An IEP is designed to be a functional blueprint for addressing a student's special education needs, not an encyclopedia."
This decision highlights a common situation when school districts will request a BSEA hearing. In this case, there were five years of partially rejected IEPS and various assertions of stay-put during appeal. The school was confused about what portions of the IEP they were supposed to be implementing. The Hearing Officer agreed that this situation was "unworkable." With this decision, the school has a "clean IEP" and a clear understanding of what program to implement.
Remember, the best special education attorneys in Massachusetts consistently review and analyze hearing decisions by the Massachusetts Board of Special Education Appeals (BSEA). Hearing decisions provide insight into the litigation interests of school districts, their attorneys, and the legal reasoning of hearing officers. If you have a question about your child's special education rights, including the right to stay-put, contact Massachusetts special education Lawyer Lillian E. Wong today.
Settlement of special education disputes can be a good thing. Most of my hearing requests are resolved this way. But there are dangers. I receive many calls from parents who are asked to waive their child's stay-put, transportation and transition rights in settlement agreements. I have even heard of parents being asked to waive their child's right to a Free Appropriate Public Education! What's worse, hearing officers and courts are upholding these agreements.
Your child's rights under IDEA are there for a reason - your child needs them. If you chose to proceed to a hearing in lieu of a settlement, a hearing officer would never order you to forgo these rights. It is a wise investment to have an experienced special education attorney review your settlement contract and make sure you are not waiving these and other critical rights.
If you are looking for a special education lawyer in Massachusetts, contact Boston area attorney Lillian E. Wong today.
Parent Response Required
Once the IEP team proposes an IEP, parents have the right to accept or reject the program, in whole or in part. Parents must indicate their response on the IEP, sign the document, and return it within 30 days of receipt. If the document is not returned within 30 days, the school may assume that the IEP has been rejected. Even if you strongly disagree with the proposed IEP or placement, it is always better to continue to communicate with the school and express your concerns in writing.
Reject in Whole or in Part?
Usually, it is better to reject only the portions of the IEP you disagree with and to accept the others. This is especially true if this is your child's first IEP. If you reject the entire first IEP, your child will not receive any special education services. Whatever services of the IEP the parents accept should be immediately implemented.
When parents reject the IEP, "stay-put" applies if the child has already been found eligible for special education services . This means that the school must continue to implement the last agreed upon IEP until parties agree otherwise or a hearing officer rules on the child's special education rights.
Referral to BSEA
When parents reject an IEP the school should refer the case to the Bureau of Special Education Appeals (BSEA). Parties can voluntarily participate in mediation. If mediation is forgone or unsuccessful, the dispute is resolved by an impartial hearing officer in a due process hearing.
While the school is required by law to refer rejected IEPs to the BSEA, this referral often does not occur. Instead, schools will convene numerous IEP meetings in the hope of resolving the disagreement. If you believe your position is strong, you also have the right to initiate a BSEA hearing. Learn more about due process hearings in Massachusetts here.
This question was originally posted on www.avvo.com.
He has dyslexia and spelling dyspraxia. He has been on an IEP since 7th grade. He has been extremely successful in high school and his only special ed classes this year are for lang. arts and a study period. He would like to attend college and we have done extensive research on colleges that will offer support services (which he would have to apply for). This year he is due to have his full battery of tests, but on the annual WIATT, he scored well and now they feel he doesn't need his IEP. Our concern is that without the support he receives his senior year he could be dramatically affected along with the assistance of his IEP documentation for college services, when applying for college.
In order to remain on an IEP you must prove that your child needs special education and related services. Read more about gathering evidence in the special education context here. Keep in mind that the law requires your child be given a Free and Appropriate Education (FAPE) not the best education.
If the school decides to remove your child from special education, they must hold an IEP meeting because this is a change in placement. In this meeting voice your opposition to this decision. Now you must decide how you want to resolve this dispute. Both parties can voluntarily agree to participate in mediation or you can request a due process hearing. Either way, the school must continue to provide your child with the programs and services outlined in his current IEP until this dispute is resolved. This right is sometimes called "stay-put."
It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Brown v. Board of Education, 347 U.S. 483 (1954)
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