Tag Archives: due process

“Stay Put” Rights in Special Education

What are “Stay Put” Rights in Special Education?

“Stay Put” rights in Special Education are something every parent whose child is receiving special education services should know about. If you disagree with changes the school wants to make to your child’s Individualized Education Program (IEP), you can stop the changes from going into effect by invoking your child’s “stay put” rights. Your child can then continue to receive their “then-current” program until the dispute is resolved.

“Stay Put” rights in Special Education are governed by both State and Federal Law. The Individuals with Disabilities Education Act (IDEA) is the federal law that ensures qualified children with disabilities a Free Appropriate Public Education (FAPE). The IDEA requires that schools give parents written notice before making any change to an IEP. State laws vary as to the length of advance notice, and how to invoke “Stay Put” rights.

How to Invoke your child’s “Stay Put” Rights in New Jersey

New Jersey State law requires that schools give parents 15 days written notice before making any change to an IEP. Most often, written notice is given at an IEP meeting when the school presents a new IEP. Issues often arise when the school proposes to change placement, or to reduce or eliminate related services. You are deemed to have signed the IEP and agreed to the changes unless you file a petition within 15 days. Once the IEP is signed, or deemed signed, the school will implement the changes.

If you do not agree with changes to your child’s IEP, you can take action. You must file a Petition for Mediation or Due Process before the change goes into effect. Usually, the change goes into effect 15 days after you are provided with the new IEP. However, if the proposed changes have not yet been implemented, there may still be time to prevent them from going into effect.

If you need help invoking your child’s “Stay Put” rights, Lori E. Arons, Esq. is available to help file a Petition for Mediation or Due Process. Contact Lori today by calling 201-388-9533 or by using the Contact Us form.

The Burden of Proof & Production in NJ

School Districts bear the Burden of Proof & Production in Special Education Disputes in New Jersey.

Special education is governed by both federal and state law.  In Schaffer v. Weast, 546 U.S. 49 (2005) the US Supreme Court held that, because the Individuals with Disabilities Education Act (IDEA) did not mention the burden of proof, and Maryland where the case originated did not have a statute addressing the issue, that the party requesting the due process hearing has the burden of persuasion to establish their claims. However, the Court also said it would not address whether states may make their own laws regarding the burden of proof. 

The Schaffer case concerned only the burden of persuasion (the obligation to persuade the trier of fact of the truth of a proposition), and not the burden of production (the obligation to come forward with evidence to support a claim). The parties in Schaffer agreed the burden of production remains with the school district.

Before the US Supreme Court decided Schaffer, at least nine states and the District of Columbia had statutes that allocated the burden of proof in special education cases to school districts. New Jersey did not have a statute, but the New Jersey Supreme Court had allocated the burden of proof to school districts.  In 2006, the Third Circuit Court of Appeals held the Schaffer rule applies in New Jersey unless a statute or regulation provides otherwise. 

On January 13, 2008, Governor Jon S. Corzine signed legislation placing the burden of proof and production in all requests for a due process hearing, whether filed by the parent or the school district, on the school district. N.J.S.A. 18A:46-1.1 provides:  Whenever a due process hearing is held pursuant to the provisions of the “Individuals with Disabilities Education Act.” 20 U.S.C. 1400 et seq., chapter 46 of Title 18A of the New Jersey Statutes, or regulations promulgated thereto, regarding the identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action, of a child with a disability, the school district shall have the burden of proof and the burden of production.

Parents need only raise the issue of whether the school has appropriately evaluated, classified or developed an appropriate IEP for their child. The burden to prove the schools actions were in accord with the law rests with the school. In my experience, despite the New Jersey statute, some school district attorneys will still seek to have the burden of proof shifted to parents seeking due process even though there is no legal basis to do so.

If you have questions about NJ Special Education law, Lori E. Arons, Esq. is available to help. Contact Lori by calling 201-388-9533 or using the Contact Us form.