August 2023:

The MLO Minute: “What Parents Should Know about Pendency or ‘Stay Put’ ” —

The Individuals with Disabilities Education Act (“IDEA”) provides powerful protections to students and families to guard against a Local Educational Agency (a child’s school district, charter school, or preschool early intervention provider) changing a child’s educational placement against a parent’s wishes. In practice, however, knowing how and when to use these protections can be complicated. Here are the basics that parents should know about pendency or “stay put” under the IDEA.

What is pendency or stay-put? Pendency or stay-put is a child’s right to remain in the last agreed-upon placement during an active dispute. The dispute needs to be actively in mediation or due process for stay-put protections, unless the school and the family agree otherwise. In most circumstances, a Local Educational Agency will not be permitted to remove the student from that last-agreed upon placement if the family timely invokes pendency. In some rare situations involving safety, a school can remove the child even if the parents timely file for mediation or due process.

Why might a family need pendency? Pendency is an important protection when the Local Educational Agency is proposing a change with which a family does not agree. For example, a school may propose to move a child to a more or less restrictive classroom or to remove or reduce important service levels. Pendency allows a family to challenge the school’s proposal before the change goes into effect. This maintains consistency in the child’s education while the school and the family resolve their dispute.

How does the process work? When a Local Educational Agency proposes a change in a student’s special education placement, it must provide the family with written notice of the recommendation, through a Prior Written Notice (PWN) and/or Notice of Recommended Educational Placement (NOREP) form. After receiving the PWN/NOREP, families who disagree with the proposed changes must timely file for due process or mediation to “invoke pendency” which will prevent the proposal from going into effect. In Pennsylvania, parents who wish to invoke pendency should do so within 10 days of the written notice by filing for mediation or due process with the Office for Dispute Resolution. They should also return the PWN/NOREP to their child’s school, noting that they do not approve the proposed action and informing the school that they filed with the Office for Dispute Resolution. If a family does not return the PWN/NOREP and file for mediation or due process within 10 days, the proposed change will automatically go into effect.

What is a change in placement? Whether an action proposed by a school is a change in placement can be a complicated analysis. Courts have held that the question of what constitutes a change in placement is fact specific. In some cases, a change in physical location alone was not a change in placement. However, many factors need to be considered including any modifications to the child’s special education and related services that accompany a change and whether a change will necessitate a change in transportation that has a significant effect on a child’s learning experience.

Have questions? We offer free initial consultations in our special education cases. If you have additional questions, please do not hesitate to contact the attorneys at McAndrews, Mehalick, Connolly, Hulse & Ryan, P.C. by CLICKING HERE.