California OAH special education order · July 29, 2013
Order Denying Motion for Stay Put Without Prejudice
OAH Case No. 2013040377 · ALJ Sabrina Kong
OAH denied Student's stay put motion without prejudice because Student did not show which IEP placement and services were last agreed to and implemented, though stay put applies in District-filed cases.
This case went to decision
Oakland Unified School District v. Student: Oakland Unified may implement its full-time school IEP over a parent's objection, but cannot contact the student's doctors without her consent. (2013)
Summary
Student asked for stay put while District's due process case was pending. District opposed, arguing that stay put does not apply to a District-filed case and that Student gave no sworn evidence of the last agreed-upon placement. OAH rejected District's first argument, holding that stay put applies during any administrative proceeding, including one the District filed. OAH still denied the motion without prejudice because Student did not provide the September 15, 2011 IEP or show that the June 4, 2013 Addendum was ever agreed to, and it ordered that any new motion include complete IEP copies with signature pages showing parental consent.
Why it matters
Stay put protects a student even when the district files for due process, but a parent seeking a stay put order must prove the last agreed-upon and implemented placement by attaching complete, signed IEPs. A parent-written addendum the district never agreed to will not set the stay put placement.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518
- Ed. Code, § 56505, subd. (d)
- Cal. Code Regs., tit. 5, § 3042
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
- Stacey G. v. Pasadena Independent School District (5th Cir. 1983) 695 F.2d 949
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:
OAKLAND UNIFIED SCHOOL OAH CASE NO. 2013040377
DISTRICT,
ORDER DENYING MOTION FOR
v. STAY PUT WITHOUT PREJUDICE
PARENT ON BEHALF OF STUDENT.
On July 23, 2013 Student filed a motion for stay put. On July 25, 2013, District filed an opposition on the grounds that Student is not entitled to stay put on a District filed case, and that Student failed to submit evidence upon penalty of perjury of the Student’s last agreed upon placement. On July 26, 2013, Student filed a declaration to the Stay Put Motion. On July 29, 2013, District filed its reply to the Stay Put Motion.
APPLICABLE LAW
Under federal and state special education law, a special education student is entitled to remain in his or her current educational placement pending the completion of due process hearing procedures unless the parties agree otherwise. (20 U.S.C. § 1415(j); 34 C.F.R.
300.518 (2006); Ed. Code, §§ 48915.5, 56505, subd. (d).) The purpose of stay put is to maintain the status quo of the student’s educational program pending resolution of the due process hearing. (Stacey G. v. Pasadena Independent School District (5th Cir. 1983) 695 F.2d 949, 953; Zvi D. v. Gordon Ambach (2d Cir. 1982) 694 F.2d 904.)
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, “special educational placement means 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
District’s assertion that Student needs to file a complaint to invoke stay put is unsupported and misplaced. As specifically provided by 34 C.F.R. 300.518, stay put applies during the pendency of “any” administrative proceedings and provides no carve out exempting District filings.
Student is entitled to remain in his last agreed upon and implemented placement while a dispute is pending and an order for stay put is generally not required unless a dispute over placement exists. Here, Student referenced the September 15, 2011 IEP and stated that the Applied Behavioral Analysis (ABA) services provided therein were essential and removal of such had not been agreed upon, but did not provide a copy of the September 15, 2011 IEP or evidence that such ABA services were part of the last agreed to IEP placement. Student also represented that the June 4, 2013 Addendum to the IEP (Addendum) is the last agreed upon IEP. However, the evidence does not support that District was presented with the Addendum before the filing of the Stay Put Motion or ever agreed to parent’s Addendum. It is unclear which, if any, of the placement and services in the September 15, 2011 or the June 4, 2013 IEP were agreed to by the Student and implemented by District prior to this dispute arising.
While Student has alleged a dispute exists as to Student’s placement and services while the District’s due process hearing request is pending, Student did not provide sufficient evidence as to the last agreed upon and implemented placement and services. Student may file a request for stay put with more specificity as to the nature of the dispute and the terms of stay put. The motion for stay put is denied without prejudice.
ORDER
1. Student’s Motion for Stay Put is denied without prejudice.
2. Student may file a request for stay put specifying the exact placement and
services last agreed to and implemented by the District. Specifically, any further stay put motion filed by Student must include complete copies, including signature pages showing parental consent, of the IEP or IEP’s Student contends are the stay put placement.
Dated: July 29, 2013 /s/
SABRINA KONG
Administrative Law Judge Office of Administrative Hearings