California OAH special education order · April 9, 2013
Order Denying Motion for Stay Put
OAH Case No. 2013030202 · ALJ Adeniyi Ayoade
OAH denied Student's stay put motion as moot because District swore in a declaration that it had no plan to change Student's placement or services while the case was pending.
Summary
Student moved for a stay put order in a due process case filed by Millbrae School District. District responded with sworn declarations from its attorney stating it had no plan to change Student's placement during the case and would keep providing services in the current placement. OAH agreed that Student is entitled to remain in the last agreed-upon and implemented IEP placement. Because there was no actual dispute over placement, OAH denied the motion as moot.
Why it matters
OAH generally will not issue a stay put order unless there is a real dispute over placement. When a district commits under oath to keep the current placement, that sworn promise can defeat a stay put motion, but it also gives families a record to enforce if the district later changes services.
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
People named in the order
- Kathryn E. Meola, Attorney for District (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:
MILLBRAE SCHOOL DISTRICT, OAH CASE NO. 2013030202
v. ORDER DENYING MOTION FOR
STAY PUT
PARENTS ON BEHALF OF STUDENT.
On March 25, 2013, Student filed a motion for stay put. On March 27, 2013, the Millbrae School District (District) filed a response to Student’s motion.
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.)
DISCUSSION
Student is correct that he is entitled to remain in the placement set forth in his last agreed upon and implemented IEP while a dispute is pending. Ordinarily, an order for stay put is generally not required unless a dispute over placement exists. Here, while Student has filed a motion for stay put, the facts fail to establish that a dispute exists as to Student’s placement and services, while this due process hearing procedures are pending.
All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
To the contrary, in District’s response to Student’s motion, which is supported by sworn declaration, dated March 27 and March 29, 2013, by Ms. Kathryn E. Meola, attorney for District, District indicated that it has no plan to change Student’s placement during the pendency of this due process hearing, and as such there is no stay put dispute. District has pledged by sworn declaration to continue providing services within Student’s current educational placement. Accordingly, Student’s motion for stay put must be denied as moot.
ORDER
Student’s motion for stay put is denied.
Dated: April 9, 2013 /s/
ADENIYI AYOADE
Administrative Law Judge Office of Administrative Hearings