The Importance of “Stay Put” Provisions
If you have a child in a special education program in a public school system, the “stay put” provision is among your family's key rights. These rights apply in the event you choose to dispute a change a school or school board wants to make to your child's individualized education program (IEP).
When you put this right into play, your child is entitled to remain in their current program and placement until you and the school resolve the disagreement.
The Impact of Y.B. v. Howell Township Board of Education, No. 20-1840
A recent ruling in the Third Circuit Court of New Jersey, however, sheds some light on the limitations of “stay put.” The case involved S.B, a then-12-year-old boy with Down's Syndrome.
In 2014, S.B. and his parents moved from New York to Lakewood, New Jersey. Under the Individuals with Disabilities Act (IDEA), the Petitioners requested an individualized education program (IEP) from Lakewood Township School District (Lakewood) that provided for out-of-district placement at the School for Children with Hidden Intelligence (SCHI); because Lakewood determined it was unable to provide an IDEA-mandated free appropriate education IEP within the District, Lakewood reimbursed the family for tuition.
A Free and Appropriate Public Education
On November 30, 2016, the S.B.'s parents, having moved to Howell, enrolled S.B. in the Howell School District (Howell). Howell determined it could implement the equivalent of the Lakewood IEP in district at its Chronically Mentally Ill (CMI) Class at Memorial Elementary School (Memorial). Howell stated that S.B. “will receive a free appropriate public education in the least restrictive environment.”
The Petitioners and S.B. attended a meeting at Memorial on December 1, 2016, to learn about the school and the classroom where S.B. would be placed, beginning on December 5, 2016.
Things Don't Go as Planned
However, the Petitioners elected not to send S.B. to Memorial; instead, they continued to send him to SCHI. During this time, Howell informed the Petitioners that each day S.B. did not attend Memorial counted as an absence. After 37 days of absences, Howell, in February 2017, terminated S.B.'s enrollment.
On August 16, 2017, Petitioners sent a letter to Howell informing Howell that they intended to enroll S.B. at SCHI for the 2017-2018 school year and requested that Howell fully reimburse them for all costs associated with attendance at SCHI.
The Petitioners maintained S.B. is entitled to continue at SCHI under “stay put” because they never agreed that S.B.'s current IEP could be appropriately implemented at Memorial.
Additionally, they argue that Memorial failed to offer a Free Appropriate Public Education by failing to develop and implement a new IEP for S.B. in accordance with N.J. law.
Finally, the Petitioners submitted that because they are domiciled in the Howell school district that they are entitled to request and receive independent evaluations of S.B.
The Defendant, Howell, submitted that, in fact, it did offer a comparable program at Memorial—a FAPE the petitioners chose not to accept. Further, they submitted that “stay put” does not apply because of unilateral relocation by the Petitioners.
Finally, Howell argued that because Petitioners never disagreed with the IEP and S.B. is no longer enrolled in the District, Howell is not obligated to pay for independent evaluations, nor the costs associated with SCHI.
Judge Kathleen M. Calemmo ruled for Howell on two of the three points.
While Judge Calemmo was clear that the District cannot disregard the “stay put” provision, she also invoked precedent that a breach of this regulation does not give the wronged party the right to determine its own remedy without any basis in legislation or case law.
So, she writes, “for purposes of this motion, even accepting petitioners' statements that they did not agree to Howell's program,” she “still must CONCLUDE that the safeguard of the “stay-put” provision is not implicated when, as here, the parents made the unilateral decision to transfer their child mid-year to a new school district that offered “comparable services” to those described in the students very current IEP. “
Reimbursement of Tuition
The judge was also clear on the request for tuition, writing, “Because Howell offered petitioners a special education program with the same related services contained in the Lakewood IEP, there is nothing in the record to suggest that Howell failed to provide S.B. with a FAPE in compliance with 20 U.S.C. 1414(d)(2)(C)(i)(1).”
She stated further: “Under 20 U.S.C. 1412(a)(10)(C)(i)-(iii), the District is not required to pay for the cost of education, including special education and related services, of a child with a disability enrolled in a private school, if that district made FAPE available to the child and the parents elected to place the child in a private facility.
In addition, by failing to send S.B. to Memorial, petitioners did not provide Howell with the opportunity to provide S.B. with a meaningful FAPE. Therefore, I CONCLUDE that summary decision is granted to respondent denying petitioner's claim for reimbursement for any costs or other relief associated with S.B.'s attendance at SCHI. I further CONCLUDE that petitioners' cross-motion for summary decision for reimbursement for the costs of sending their son to SCHI is therefore, DENIED.”
Howell requested from the court a summary decision denying petitioners' claim for independent evaluations. Howell stated that the claim did not apply because petitioners agreed with the Lakewood evaluations and because S.B. was disenrolled from Howell when the request was made. However, Howell failed to challenge the original request by filing a due process hearing within 20 days of that request.
In the judge's eyes, Howell had two options: to fulfill the request or to file for due process within the legal timeframe. The judge found there was no dispute about Howell's failure to file within 20 days and therefore denied a summary decision.
While “stay put” and related safeguards in the public special education system for children with disabilities may seem straightforward, making sure your child gets the best possible education requires knowledge of your family's rights.
Understanding these before you take action—and being armed with the right legal advice when you do—requires an experienced lawyer who will fight in your child's best interests.
Attorney Joseph D. Lento assists parents of children with disabilities in determining their options under New Jersey law.
Help is just a phone call away! Contact the Lento Law Firm at (888) 535-3686 today to discuss your case and your options.