California OAH special education order · May 22, 2014

Order Partially Granting Motion for Stay Put

OAH Case No. 2014050280 · ALJ Laurie Gorsline

OAH partially granted Student's stay put motion: the February 4, 2014 IEP services stay in place, but stay put does not keep Student in eighth grade, because advancing to the next grade preserves the status quo.

Granted in part Stay put

Summary

Student, an eighth grader with an intellectual disability, asked OAH for a stay put order keeping him in eighth grade for 2014-2015 while his due process case was pending. District opposed only the grade retention request. It agreed the services in the last agreed-upon IEP were stay put and said it would not change them. OAH ordered stay put under the parts of the February 4, 2014 IEP that Parent consented to, but denied grade retention, because moving to the next grade keeps the status quo and Student offered no evidence that the IEP supports could not be provided in high school.

Why it matters

Stay put protects a student's IEP services and supports, not grade level, so parents generally cannot use stay put to hold a child back while a dispute is pending. Families who think the next school cannot deliver the IEP supports need to show evidence of that.

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
  • Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115
  • Van Scoy v. San Luis Coastal Unified Sch. Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083

Topics

stay put grade retention transition to high school last agreed-upon iep status quo

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. 2014050280

v. ORDER PARTIALLY GRANTING

MOTION FOR STAY PUT

PASADENA UNIFIED SCHOOL

DISTRICT.

On May 6, 2014, Student through her parent (Parent) filed a Due Process Hearing Request (complaint) against Pasadena Unified School District (District). Student’s complaint alleges Student is 14-years old, in the eighth grade, and qualifies for special education under the eligibility category of intellectual disability. Student alleges he is currently attending a special day class (SDC) at Sierra Madre Middle School. Student alleges he has been attending a sixth grade general education science class since the beginning of the 2014 school year where he made academic progress with modification of testing and classwork. Student will enter high school next year. Parent requested that District retain Student in eighth grade for the 2014-2015 school year and that District provide Student with more time in general education. Student contends that in high school he will no longer have access to the appropriate level of general education classes and he will require more intense supports. Student further alleges he requested and was denied a temporary support assistant (TSA) to assist him during inclusion in general education classrooms.

On May 6, 2014, Student filed a motion for stay put, accompanied by a copy of the February 4, 2014 Individualized Education Program (IEP) in support of his motion. The February 4, 2014 IEP states that District’s offer of a free appropriate public education (FAPE) is an SDC at Sierra Madre Middle School where Student will spend 40% of time outside the regular class and 60% of time in the regular class. The notes indicate that part of the offer of FAPE includes Student attending a sixth grade general education science class.

Parent consented to the IEP except for placement for the 2014-2015 school year, the percentage of time Student spends in a general education class, the District’s failure to provide a TSA and three of the IEP goals.

On May 13, 2014, District filed opposition to the motion. District’s opposition contends that the law does not provide for grade level retention for purposes of stay put.

District does not dispute that the services and support in last agreed upon IEP are subject to stay put, and represents it does not intend to change the education program or services contained in Student’s last agreed upon IEP. However, District states it is opposing motion because stay put does not apply to grade level retention, but to a student’s educational placement of services and supports.

APPLICABLE LAW AND DISCUSSION

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.)

Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35.) Progression to the next grade maintains the status quo for purposes of stay put. (Van Scoy v. San Luis Coastal Unified Sch. Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086 [“stay put” placement was advancement to next grade]; see also Beth B. v. Van Clay (N.D. Ill. 2000) 126 F. Supp.2d 532, 534; Fed.Reg., Vol. 64, No. 48, p. 12616, Comment on § 300.514 [discussing grade advancement for a child with a disability.].)

Here, Student’s stay put request is for retention in the eighth grade is based upon Parent’s opinion that Student will no longer have access to the appropriate level of general education classes at high school and will require more intense supports. However, Student has offered no evidence that the status quo cannot be achieved by a stay put order which allows him to transition to high school with the supports provided for in the Student’s last agreed upon and implemented IEP. In its opposition, District has pledged not to change the education program or services contained in Student’s last agreed upon IEP without parental consent or administrative law judge decision. Accordingly, Student is not entitled to grade level retention for purposes of stay put.

All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.

ORDER

Student’s motion for stay put is partially granted. Student’s stay put shall be as provided in the February 4, 2014 IEP and consented to by Parent, with the exception that Student is not entitled to grade level retention for purposes of stay put.

DATE: May 22, 2014

/S/

LAURIE GORSLINE

Administrative Law Judge Office of Administrative Hearings