Stay Put, Pendency and IEP: Explained by a Special Education Advocate.

IEP Stay Put

(a) Except as provided in §300.533, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under §300.507, unless the State or local agency and the parents of the child agree otherwise, the child involved in the complaint must remain in his or her current educational placement.
Sec. 300.518 Child’s status during proceedings

The italics is mine. I find that “IEP Stay Put or “pendency” is one of the most misunderstood concepts of the IEP process.

So let’s tackle it. That way, parents can learn how to use it as necessary. But pendency or stay put rights do not always work in your favor.

What does Pendency mean in IEPs?

First, let’s take a look at the dictionary definition of pendency:

noun, plural pendencies.
1. the state or time of being pending, undecided, or undetermined, as of a lawsuit awaiting settlement.

In this case, not a lawsuit but a Due Process Hearing.

What are my Stay Put Rights?

And where can you find them? I’m glad you asked!

Guess what?!? They are in Procedural Safeguards! Yes, really. See this is why NOT reading your Procedural Safeguards makes my Top 10 list of Parent Mistakes.

Pendency or Stay Put is officially known as “Child’s status during proceedings (Sec. 300.518).” (Please let me know if that IDEA.gov link is not working, can’t be too careful these days!)

Ugh, but I do not want to read 10 pages of legalese….what does it mean?

Pendency and IEP

Well, it means that while your IEP is in dispute, the child “stays put.” Or as IDEA says it “the last agreed upon placement.”

That’s it. What is the last IEP that you received, that you signed off on as far as a PWN? That is the IEP that you use until the disagreement is worked out.

Pendency and Stay Put can work for you AND against you.

If your child is receiving services and the district is trying to reduce/remove them, the child will continue to receive those services until the dispute is worked out. So, that can be a good thing.

However, let’s say you want your child’s placement moved, or you want them to get a 1:1, or more services. Nope. The child will not receive any of those things until the dispute is worked out.

This can be particularly stressful if the child is in a hostile or bullying situation and the team does not agree to change/move.

Is Stay Put just for Due Process?

Not necessarily. It varies by state. Here in PA, you can use it for mediation as of 2008. Check your state’s special education regs on this.

However, a new IEP should not take effect until the team agrees, and you can read below how you disagree. I’m not a lawyer nor do I play one on the Internet. But services or anything else should not be removed from an IEP until the new IEP starts, and it doesn’t start until all parties agree. If your child is still missing services or instruction during this time, keep a log of it and see a lawyer about seeking comp ed.

Pendency/Stay Put means Everything in the IEP.

This is where parents don’t always see the big picture. Pendency includes everything in the IEP.

Including the diagnosis/classification check box. Yes! Think about this! How many parents do I hear from who are in districts that are trying to move their kid from Autism to Emotionally Disturbed? No! If you don’t want it, don’t do it. Fight it. They cannot change ANY part of the IEP except as a team decision.

Please know that not a lot of parents and teachers and administrators know this. They mistakenly think that pendency/stay put only refers to placement or frequency of services. It doesn’t. It’s everything. It says so quite clearly–“the last agreed upon IEP.”

“Great, easier said than done,” you say.

Stay-Put-Procedures-pennsylvania

How to Use Your Stay Put Rights

You can do this, really you can.

How to Use Stay Put Rights in Special Education (as a parent)

Know your State’s Regs.

Do a few Google searches or call your state’s parent training center and ask about Pendency/Stay Put. It’s not as simple as declaring I want him to stay put!

Make sure that you are participating in ALL 5 parts of the IEP process that are particularly conducive to parent input.

If you have not done that but you have recently had an IEP meeting, you must at least do yours after the IEP meeting letter.

This helps to make sure that the new IEP you receive is the one you are expecting.

Learn IEP Prior Written Notice and USE IT!

I cannot say this enough. Learn what a PWN is and how to use it. Then, after the meeting, if they say great, thanks, if you could just put that and the reasons you are denying the 1:1 on a PWN and send it to me. By law, they have to do this. If they refuse a PWN, consider a state complaint.

Once you receive your PWN, you have your choices to make IEP Mediation, IEP Due Process, etc.

Proceed accordingly, and once you have done so, you have exercised your Procedural Safeguards.