0:00:05.4 VB: Welcome to the Inclusive Education Project. I'm Vickie Brett.

0:00:09.2 AS: I'm Amanda Selogie.

0:00:10.6 VB: We're two civil rights lawyers on a mission to change the conversation about education, civil rights, and modern activism.

0:00:19.5 AS: Each week we're gonna explore new topics which are going to educate and empower others, and give them a platform to enact change in education and level the playing field.

0:00:33.4 VB: Welcome back, listeners. We had fake summer here for a couple of days in California. And now we're back to, I guess, it's supposed to rain again.

0:00:44.3 AS: Yeah, more rain. Of course, it conveniently decides to rain on the weekends only.

0:00:48.8 VB: I know, I know that's so tough. April showers bring me flowers.

0:00:52.5 AS: I apologize if you're listening to this outside of California and you're like, wah, wah, wah. I don't feel bad for you because, you know what? We haven't had nice weather. I mean, it's now April, and we have been in cold and gloomy and wet all school year. And you know what? We pay a lot of money in California.

0:01:08.4 VB: We pay a lot of money. That's the only thing that's only saving grace. So pay a lot of money. But you know, we were just talking about how some kiddos are out end of May. And...

0:01:19.9 AS: Yeah.

0:01:21.2 VB: Yeah, it's like middle of April. And so like the push for those annual IEPs, those transition IEP meetings, those meetings where other things.

0:01:30.5 AS: Transition especially.

0:01:30.6 VB: I know, I know, we are in it. And so we wanted to talk about it. This is just a solo episode today, you guys solo as solo with two people can be. And it is the power of stay put. So in the past, we've talked about stay put, but we really wanted to dedicate an episode simply because both of us have cases where it's been used in different ways. And one of the ways that we describe it, we do training presentations workshops is the parent, if they disagree with a change in the IEP, so like, the general example is, they are going to be taking away speech and language services. And if the parent does not agree, and they cannot... The team and the parent cannot come to a mutual understanding at the IEP, then... And if parent wants to consent to the IEP, for instance, like the other goals, and the other services, just so that there's no interruption, they can consent in part, and then they can stay put on the part that they don't disagree with.

0:02:36.5 AS: Right.

0:02:38.5 VB: Or that they... Yeah. That they...

0:02:38.8 AS: Yeah.

0:02:39.1 VB: That they don't agree.

0:02:40.5 AS: I mean, it's essentially saying that there is a disagreement about something that is being proposed, whether it's to add something or take something away or change something in the IEP, there's a disagreement. So the concept is, we're gonna keep things the same while we flash out disagreement. And so technically, it's supposed to be used primarily, if you're filing for due process. You file for due process to resolve the dispute of the decrease in speech or the change in placement, whatever it may be, and that the court wants things to remain the same so that the child isn't disrupted obviously, in the event that, let's say, whatever it is that the parent is... Their position is prevails, you don't want to change them and have to change them back. So it's supposed to stay the same during the resolution of this disagreement.

0:03:26.5 AS: In practice, it's not always used with litigation. And 'cause basically, essentially, it's up to the school district on whether or not they're going to file for due process on that, the parents can obviously always file, but more often than not, we get situations where the school district proposes a change, an additional, or subtraction of something on the IEP, the parent disagrees, everything stays the same for that portion until the dispute is resolved. So the school should be holding another IEP to discuss this further and say, can we resolve this? Maybe we're going to tweak or look up a third option. But a lot of times...

0:04:04.8 VB: Yeah, I mean, I would argue this is one of the most important legal rights that a parent can have, right? Because in California, specifically, right? Like we are... And you have to state that, especially in your written consent. I think sometimes we also, when we're talking to clients, it's like, if there's something else that's going on that the parent doesn't agree with, and there's no other changes in OT or PT or anything like that, then you could just say, look, I'm just gonna stay put on everything. I actually don't agree to anything like what's the resolve, like whatever dispute. And we've seen people do it in a very thoughtful articulate way, and we've seen people do it in a way that hurts them more than does good.

0:04:50.4 AS: Yeah. And now the way you do it is gonna depend on your state, whether you're in a consent state or not. So a reminder that even though the federal law is the same across states, there are certain nuances that have been left that are different state to state. So in consent states like California, the school district cannot make any change, cannot start anything, stop anything until parent consents. So in practice, if the parent doesn't agree with the change, if they just don't consent, even if they don't say, I assert my stay put rights, stay put comes into effect, or it should. But in a non-consent state, you do have to be a little bit more proactive and assert those rights. Because in a non-consent state, you don't have to consent for things to get started. So you have to really be clear that like this change, I do not agree to this change. So it's gonna look a little bit different on like how you approach it.

0:05:44.1 VB: Yeah. And we have been seeing with certain districts the federal law does require them to send you a prior written notice of a proposed change. So maybe if you make you assert that right within the meeting itself, there may be a follow up of a prior written notice indicating what their proposed changes is gonna be. And if not, if you get the prior written notice before, then you wanna take action to show, hey, I'm actually disputing the change that you're gonna make. And that could be then immediately requesting another IEP to try and resolve it. And at times, it may mean filing a complaint, a due process or mediation only. We've had some clients do that as well. One of the ways that I kind of also wanted to point out is for an initial evaluation.

0:06:31.4 VB: Often times we'll get parents that actually agree with the goals, the services, let's just even say placement, but they don't agree with the eligibility category. That is... Then that means that you don't have stay put, you've just started this. So it's important to kind of make that distinction that you would wanna resolve that as quickly as possible, because it is a situation where those services won't get started until you agree.

0:07:01.6 AS: Yeah, because stay put reverts to the last consented to IEP. Or if you're only talking about a portion, the last consented to portion, so the last IEP that you consented to speech and I mean, realistically like, I mean I've had cases where a school district wants to decrease services, let's say OT, and the parent disagreed. And it's literally something that the parents have to keep straight because they haven't consented to OT for like four years because the school district just continue... Like they continue to make their offer that, like we continue to believe that a decrease in OT is necessary. However, we're not gonna file for due process on it. So we're just gonna continue. And in some cases that works fine. In cases where I've seen it for like, let's say OT is where there's consultation or there's... It's not a ton of direct service. So it's like 30 minutes a month where the OT comes out to make sure that sensory strategies are working and if they need to be tweaked, and there may not be direct service goals for that OT, it's more of accommodations. And so the school district doesn't feel like it's worth, like the OT may be say, everything's working great, I don't think I need my services. And the parents say, well, it's working great because we've got this maintenance...

0:08:15.1 VB: We hit the stride.

0:08:16.4 AS: That we got you checking in. Yeah. And all of that. And so the disagreement isn't big enough where the school district feels that it's worth say going to due process to enforce. So we may get times where you have stay put for years and years and then other times where a school district, they file for due process right away because maybe you're asking for stay put in placement. A student, for instance, is having behaviors. The school district says this isn't working in the general education classroom, we need to pull them, we move them to a special day class. The parent says, nope, starting to stay put rights. And the school district says, well, because of the safety issue and the concerns, maybe there's maladaptive behaviors. And I literally had these cases where then they filed for due process on that.

0:08:55.8 VB: Right. Yeah. I mean obviously it depends case to case. Like I know Amanda had just said years and years, those are the people that are coming to us that have fallen through the cracks. We would not recommend being in stay put for years and years and years. Obviously, if you are in active hearing and you're in active pursuit of resolving the disputes, it's a little different. But yes, we've seen those situations. And another example from my earlier example that I kind of wanted to pinpoint as well is like the opposite. Let's say that you actually agree that your child needs an IEP, you agree with the eligibility, but you don't agree with anything else, swift action needs to be taken to alert the school district that you do in fact agree that your child needs special education.

0:09:42.5 VB: And what we'll see is a parent just disagree with everything. And now of course, again, it just depends on the situation, but more often than not, you want everybody to know on the district side that you actually agree that your child needs to have an IEP and consenting even to that portion so that you have stay put right in the sense that, well, my child should have been... If this is dragging on for a year, at least you can say, well, a year ago I agreed that this child was eligible and it's taken us a year to try to resolve everything else. That's not okay. I think what we've kind of seen some recent cases come out where there was confusion around the initial and whether or not the parents had agreed. And we feel pretty strongly based on recent case law that if you agree with eligibility, you want that so that you can have some form of stay put and the power of it and it being a right of the parent that they kind of know about, but kind of don't.

0:10:45.6 VB: I think sometimes we've heard district staff say something along the lines of like, well, if you don't sign the IEP, we can't get started on everything. Yes, this is technically true. If they have new goals, new services, those new services cannot get started. But if this has been the same type of service your child had the year before or even the year before that, you're gonna be able to maintain, like there's pros and cons to everything, right?

0:11:13.0 AS: Right. And you can do partial consent, partial stay put.

0:11:16.3 VB: Yes.

0:11:16.9 AS: But you wanna be really clear when you do that. So what we recommend is if you are asserting stay put on certain things and not others, it's not just a blanket on the actual IEP document, you would say something like, see letter dated and then do the date and then do a separate letter. And the separate letter would outline, these are the items that I agree to in the April 12th, 2024 IEP. And then detail them. And they can be that we agree to some goals, we agree to goal number one and five and seven, and I agree to these accommodations and I agree to eligibility. And then you outline like, but I don't agree with these goals. And the thing that is really helpful is when you do that, if you don't just say, I don't agree with these and so I don't consent, if you can explain why... So if there's goals you're not agreeing with, you say, I don't agree with goal number seven because I don't believe it's challenging enough. Or I believe it's on a skill that we've already gone through, or I believe my child has already met it, or it's not an accurate baseline, or whatever the case may be, that's gonna be helpful because then the school district is required to respond to that and either provide you with more data, more information, more than IEP, and they know how can we address this.

0:12:23.1 VB: Which we've actually seen that and increase in that where a parent will say why they disagree with the specific goal, and then a prior written notice will come and it'll say, okay, we agree with you. We're gonna hold an IEP meeting and the team will discuss these changes in the way in which we... I was just reading a record that had had that in it. And that kind of helps you guys get to that next step and resolving things that much quicker. We've also had them say yes in a prior written notice and then provide the change in the language. Sometimes it's just a change in language and then boom, you're resolving, you're signing the new IEP non-meeting amendment and we're on our way. But there are different ways in there, certainly as a powerful tool for parent.

0:13:09.9 VB: But with that, when parents are hearing from other parents that they're in stay put for years and years, I think that's where the waters get muddied, and that's why we wanted to have just this key takeaway with, okay, well, what happens if I disagree with it?

0:13:27.5 AS: Yes.

0:13:27.8 VB: Have you had a positive experience with stay put, Amanda, that where the parent...

0:13:33.5 AS: Yeah, so, I mean, I've had circumstances where, and let's just talk about like a placement decision, 'cause this is easier, where a student is in general education, and let's say they have an aid. And there's some behavior, there's some concerns going on, or I've had situations where they have an aid, and others where they don't have an aid. I've had this happen a lot. And the school district says, there's some behaviors, there's this and that, and it's just not working in general education, we need to move to a special day class. I come in and say, look, there's really not enough information to say definitively we need to move, because one, maybe there hasn't been an FBA if we're dealing with behaviors.

0:14:07.9 VB: Exactly right.

0:14:11.0 AS: Maybe we haven't taken data. Maybe the aid hasn't been in there. Maybe we haven't pushed in the services that need to be pushed in. And so, I come in and say, look, we're gonna assert stay put, but here's what we'd like from you. We'd like you to take data, X, Y, and Z, we wanna look at these behaviors. Or we wanna do an FBA, we wanna do an assessment. Reality is, when you're changing placements, we should have an assessment to prove that changing placement is necessary. Oftentimes, that doesn't happen. So, where I've come in and I've said, okay, look, and especially this time of school year, we see requests to change placements this time of year, to say, we're gonna change placement for next school year. And a lot of times, I go, wait. If we're gonna change placements at the beginning of the school year, like a lot can happen over the summer. A lot can happen with the beginning of the school year. You really don't know. And so, if there is that disagreement at this time, and I did this exactly at this time last school year, I said, I really think, 'cause the teacher... We're gonna have a different teacher, we're gonna have a different rapport, we have the summer, the kid's gonna be a little older. Let's take the first 30 to 60 days of the school year. Let's take some data, let's maybe do an assessment. School year comes around, we start the new school year, we get the data, and then the team goes, this is a different kid, right?

0:15:17.2 VB: Yep. Yep.

0:15:18.7 AS: Because maybe that change in teacher, they got a little older, they had a summer break, actually did change things. Or, in other cases, we've taken data, and this assumption that these behaviors are happening all the time and we can't handle them, now we have an antecedent to the behavior and we have a plan of action that we can try, and then you try that. So it's important that if we are asserting to stay put, that we have a plan of how do we resolve this disagreement? Because otherwise, you're gonna constantly be in this push and pull battle of the school district thinking your child needs something different and you don't where we're not really seeing eye to eye.

0:15:51.0 VB: Exactly, right.

0:15:52.4 AS: And the child is not gonna benefit from it if we can't. Because if the school district thinks that something needs to change, whether it's increased or decreased services, we really need to have concrete data one way or another in order to really decide what is or isn't working. So I think that's my biggest takeaway, is that it's not enough to just assert stay put, we need to have a plan of action of, how do we prove it to the school district that stay put is appropriate?

0:16:18.7 VB: I was actually thinking of the recent case that you had where the goals were not passed and the district wanted to kinda rewrite them to actually make them easier. And my understanding was that it wasn't, sometimes the team, and look, if you have us as your attorneys, which we're not your attorneys yet, this is all just generalities that we're talking about and hypotheticals, but when you're only having an IEP once a year and you're not really having communication, open dialogue with the teacher and it's like, you know what? We realized that this goal, we needed a step before we could even get there and we missed that step. So now we wanna rewrite, we know that he didn't pass this goal, we're rewriting this goal, we're adding more services. I think that is a very different situation than the one that you had, where basically the child did not pass the goals and then they were trying to water down.

0:17:19.0 AS: Yeah, well, so in situations where school districts are trying to take away services or decrease services, a lot of times parents will stay put and the school district will say, well, we can't start working on these new goals. And the situation that Vickie is talking about is one where, in this case, the parents actually were happy about that because they felt like the proposed goals were not appropriate because the child had not met the goals, they wanted to continue working on them, where the school district's perspective was that the goals were too challenging, we need to decrease the severity of the goals, in the parents' view, it was being watered down, they weren't challenging enough. And so we can use it to our benefit and a lot of times, like schools will try to say, like, oh, but the goals, we can't work on these goals. And I have had stay put where students are working on a goal for two years because the parents stay put on goals and sometimes that is needed to really gather more information. Other times, of course, that's not appropriate, like we should be changing goals.

0:18:17.1 VB: Right, or adding services so that the child can reach their goals more appropriately.

0:18:25.2 AS: Yes, yes, yeah.

0:18:25.6 VB: Yeah.

0:18:25.9 AS: So a lot of factors to consider.

0:18:27.2 VB: Yeah, and I mean, we've interchangeably, when you look at stay put, it's... When the legal terms, when the district is proposing a change in the educational placement. Placement sounds like a location, at times it is, but it also includes, as Amanda and I have discussed different services, goals and things like that. And the kinda final note that we wanted to add is that there is potentially an exception to the stay put rule. And it is, if the child is, the current placement is going to result in injury to the child or others, or the child is being suspended, potentially expelled, carrying drugs or a weapon, then you cannot assert stay put to say, well, the child needs to just stay here. We do have the law that says that the school can remove the child for up to 45 days. However, in that time, the school and you are required to try to address the situation with services, another placement, like Amanda said, with the data. But for the most part, again, I think the key takeaway is that stay put is very powerful. It needs to be done in a way depending on the facts of your case.

0:19:45.0 VB: And of course, like our friend Victoria says in her TikToks, we're not your attorneys yet. So if you have a situation where you're contemplating using stay put, just message us and we will talk about your case.

0:19:52.4 AS: Yeah. We're here on social media. Send me your questions about situations, about specific stay put, either, go on our website and ask for a consultation or you can send us a message and we can do more little Q&A on it on our social media as well.

0:20:09.5 VB: Absolutely. Hang in there, listeners. We're close. We just got these last few months.

0:20:17.0 AS: Yep, almost a summer.

0:20:18.2 VB: You'll make it to summer. All right. Take it easy. We'll talk to you next week.

0:20:18.4 AS: Bye.

0:20:21.9 VB: Bye.