Stay Put Rights in South Dakota Special Education

The school has proposed moving your child to a more restrictive placement, cutting services from their IEP, or changing their program — and you disagree. You've filed for due process, but the district is saying the change is happening regardless. Can they do that?

No. Under IDEA's "stay put" provision (also called pendency), your child has the legal right to remain in their current educational placement while any dispute is being resolved. This is one of the most powerful protections in special education law, and South Dakota school districts cannot override it simply because they want to make a change.

How Stay Put Works in South Dakota

Stay put is automatic. The moment you file a due process complaint, your child's placement freezes at the last agreed-upon arrangement. The school cannot:

• Move your child to a more restrictive setting
• Reduce related services (speech therapy, occupational therapy, counseling)
• Change the classroom placement or school
• Remove supports that were part of the current IEP

The "current educational placement" is defined as the placement in effect when the dispute arose — typically the most recent IEP that both you and the school agreed to in writing. If you never consented to a proposed change, the placement reverts to the last IEP you did agree to.

This protection continues until the dispute is fully resolved — whether through a hearing officer's decision, a settlement agreement, or mutual agreement between you and the district.

South Dakota's due process procedures are governed by IDEA and administered through the SD DOE Special Education Programs office in Pierre. The state's dispute resolution framework includes a mandatory resolution session before the hearing proceeds — but stay put applies from the moment you file, not just once the hearing is underway.

When Stay Put Applies in South Dakota

Stay put activates when you file for:

• Due process hearing — the primary trigger under IDEA § 1415(j)
• An appeal of a hearing officer's decision to state or federal court

Note that under South Dakota's 2024 legislative update (House Bill 1220), any party can now appeal a SD DOE hearing officer's decision by filing a civil action in state or federal court within 30 days of the decision. During that civil appeal, stay put continues to protect your child's placement.

Filing a State Complaint with the SD DOE does not automatically trigger stay put protections. State complaints are an important tool for procedural violations — but they are separate from due process, and the pendency protection only attaches to due process proceedings.

If you're facing an immediate placement change you disagree with, filing for due process — even while pursuing informal resolution options — activates stay put and freezes your child's current services.

The 5-Day Prior Written Notice Window and Stay Put

South Dakota has a unique procedural safeguard that is directly relevant to stay put: the 5-Day Prior Written Notice (PWN) rule under ARSD 24:05:30:04. Before any proposed change to your child's identification, evaluation, placement, or provision of FAPE goes into effect, the district must give you written notice at least five calendar days in advance.

This 5-day window is critical for stay put strategy. If the school issues a PWN proposing a placement change you disagree with, that window gives you time to file for due process before the change is implemented. Once you file, stay put locks in the existing placement — the proposed change cannot take effect while the dispute is pending.

Do not let that 5-day window pass without acting if you disagree. You can always withdraw a due process complaint later if the dispute is resolved, but you cannot undo a placement change that has already been made.

The Discipline Exception

There is one significant exception to stay put. If your child is removed for disciplinary reasons involving weapons, drugs, or serious bodily injury, the school can place them in an Interim Alternative Educational Setting (IAES) for up to 45 school days — even if you file for due process. During this 45-day period, a hearing officer (not the school) determines whether the child returns to their original placement.

For all other disciplinary situations, stay put applies in full. If a Manifestation Determination Review (MDR) determines that the behavior was caused by or substantially related to the child's disability, the child must return to their prior placement. South Dakota districts cannot use routine disciplinary removals or informal transportation restrictions as a workaround — a 2020 state complaint against a South Dakota district found a violation after the school used 11 separate transportation suspensions in three months without triggering a Manifestation Determination Review.

How South Dakota Schools Try to Work Around Stay Put

Several tactics surface repeatedly in SD DOE complaint records and parent forums. Watch for these:

Pressuring consent to a change at the meeting. Schools may frame a placement change as "what's best for your child" and push you to sign documents before you've had time to review them. You are never required to sign at the IEP meeting. South Dakota's 5-day PWN rule exists precisely to give you time to evaluate proposed changes — use it.

Claiming the change isn't a "change of placement." Districts sometimes argue that moving a child to a different classroom within the same building, or reducing a service by a small amount, doesn't constitute a placement change triggering procedural protections. Under IDEA, any significant change to the nature or location of services can qualify. If the change materially alters your child's educational program, you have grounds to invoke pendency.

Citing the staffing shortage as justification. South Dakota faces a documented, severe special education teacher shortage — it was identified as the highest category of open teaching positions in the state during a 2019 legislative interim study. Districts sometimes use this reality to justify reducing services or changing placements. Staffing shortages do not relieve a district of its FAPE obligation. A district's inability to hire required staff means it must find another way to deliver the service — not eliminate it.

Implementing changes before you file. Stay put only applies once you've filed for due process. If the school is threatening a change, file promptly to preserve the current placement. In rural South Dakota, where advocates and attorneys are geographically scarce, acting quickly on your own is often the only realistic option.

What to Do If the School Violates Stay Put

If the district changes your child's placement after you've filed for due process, they are violating federal law. Take these steps:

1. Send a written letter to the special education director citing the stay put provision (20 U.S.C. § 1415(j)) and demanding immediate restoration of the prior placement
2. Document the violation precisely — note the date of the change, what changed, who authorized it, and what written notice (if any) you received
3. Contact the hearing officer assigned to your case and request an emergency order restoring placement
4. File a Written State Complaint with the SD DOE Special Education Programs office, citing the stay put violation as a separate procedural issue alongside your due process case

State complaints must be filed within one year of the violation and must be resolved by the SD DOE within 60 calendar days. Stay put violations are taken seriously by hearing officers and tend to strengthen your overall case by demonstrating the district's disregard for procedural safeguards.

Stay Put in Rural Districts and Cooperative Structures

In South Dakota, many districts deliver special education services through regional cooperatives — such as the Black Hills Special Services Cooperative (BHSSC) in western SD or the Cornbelt Educational Cooperative. If your child's services are provided by a cooperative-assigned specialist (speech therapist, school psychologist, occupational therapist), stay put still applies to those services. The district cannot use a cooperative scheduling change or a staffing rotation to effectively eliminate a service that was part of your child's agreed-upon IEP.

If you're in a rural area, be aware that geographic isolation doesn't change your legal rights — it just makes enforcement harder without preparation. The further you are from Sioux Falls or Rapid City, the more important it is to have your documentation and dispute letters ready before a crisis arises.

Get the Templates Before You Need Them

Stay put is only useful if you can invoke it quickly. The South Dakota IEP & 504 Advocacy Playbook includes due process filing guidance, stay put enforcement letters, and South Dakota-specific dispute templates built around ARSD 24:05 — so you're not starting from scratch at the moment your child's placement is on the line.

See more United States homeschool guides →