California OAH special education order · March 13, 2013
Order Denying Student's Motion for Stay Put
OAH Case No. 2013020869 · ALJ Alexa J. Hohensee
OAH denied Student's renewed stay put motion to keep her at Wings Learning Center. The supporting email was not properly authenticated, and the IEP called for any contracted nonpublic school, not that specific school.
Summary
Student filed an amended motion asking that her placement at Wings Learning Center, a nonpublic school, continue while her due process case was pending, after an earlier motion was denied. District did not oppose. Student's advocate submitted a declaration about an email saying the school had ended its contract with District, but the advocate had not received the email and could not vouch for it. OAH also found that even if the email were admissible, Student's IEP called for a nonpublic school under contract with the district, so District could meet stay put by providing a comparable program at another nonpublic school.
Why it matters
Stay put protects the program described in the IEP, not necessarily a particular school. If the IEP names only a type of placement, a district may move the student to a comparable school. Parents should also support stay put motions with evidence from someone who has personal knowledge of the facts.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Cal. Code Regs., tit. 5, § 3042
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
- McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527
People named in the order
- Linda Hughes, Student's advocate (declarant)
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2013020869
v. ORDER DENYING STUDENT’S
MOTION FOR STAY PUT
SOUTH SAN FRANCISCO UNIFIED
SCHOOL DISTRICT.
On February 25, 2013, Student filed a motion for stay put, which was denied by order dated March 1, 2013.
On March 6, 2013, Student filed an amended motion for stay put. No opposition has been received.
APPLICABLE LAW
Until due process hearing procedures are complete, a special education student is entitled to remain in his or her current educational placement, unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a) (2006) 1; Ed. Code, § 56505 subd.
(d).) This is referred to as “stay put.” For purposes of stay put, the current educational placement is typically the placement called for in the student's individualized education program (IEP), which has been implemented prior to the dispute arising. (Thomas v.
Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to an individual with exceptional needs,” as specified in the IEP. (Cal. Code Regs., tit. 5, § 3042.) It does not violate stay put if the school of attendance becomes unavailable and the child is provided a comparable program in another location. (See McKenzie v. Smith (D.C.
Cir. 1985) 771 F.2d 1527, 1533; Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; Weil v. Board of Elementary & Secondary Education (5th Cir. 1991) 931 F.2d 1069, 1072-1073; see also Concerned Parents & Citizens for Continuing Education at Malcolm X (PS 79) v. New York City Board of Education (2d Cir. 1980) 629 F.2d 751, 754, cert. den. (1981) 449 U.S. 1078 [101 S.Ct. 858, 66 L.Ed.2d 801]; Tilton v. Jefferson County All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
Bd. of Education (6th Cir. 1983) 705 F.2d 800, 805, cert. den. (1984) 465 U.S. 1006 [104 S.Ct. 998, 79 L.Ed.2d 231].)
DISCUSSION
Student seeks an order that her placement at Wings Learning Center (WLC), a nonpublic school (NPS), be continued pending the hearing on her due process hearing request. In support of her original motion, Student submitted her last agreed upon and implemented IEP of March 14, 2012, as amended on December 6, 2012. That motion was denied because Student failed to demonstrate that the stay put placement was in dispute, without prejudice to Student filing a renewed motion.
In her amended motion, Student attempts to establish a stay put dispute with the declaration of advocate Linda Hughes, purporting to authenticate email from the executive director of WLC to Parents, dated February 5, 2013, informing Parents that WLC had terminated its contract with District to serve Student, effective February 28, 2013.
Ms. Hughes was not one of the recipients of the purported email, and cannot swear to its authenticity. Therefore, Student’s motion continues to be unsupported by admissible evidence of a dispute with the District concerning Student’s stay put placement.
Even had the email message constituted admissible evidence, it would not have demonstrated a dispute regarding Student’s stay put placement. Student’s last agreed upon and implemented IEP offered a “Nonpublic school (NPS) under contract with SELPA or district,” with academic instruction to be provided at a “nonpublic day school.” If WLC terminated its contract with District, as asserted in the proffered email, Student’s IEP obligates the District to provide a comparable program at another NPS, not WLC. Student cites no authority for the Office of Administrative Hearings (OAH) to exercise jurisdiction over contractual matters between school districts and nonpublic institutions, and so long as District provides Student with an appropriate program at an NPS, the District is in compliance with Student’s IEP and the law concerning stay put.
Accordingly, Student’s motion is denied.
IT IS SO ORDERED.
Dated: March 13, 2013 /s/
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings