California OAH special education order · June 26, 2014
Order for Supplemental Briefing on Motion for Stay Put
OAH Case No. 2014060969 · ALJ Peter Paul Castillo
OAH deferred ruling on whether Student's stay put is Nesbit Elementary or Ralston Middle School and ordered District to produce the IEPs it relied on, because its motion lacked supporting documentation.
Summary
Student's due process complaint asked that he remain at Nesbit Elementary School while the parties find an appropriate placement. District opposed, arguing Student's stay put is Ralston Middle School as the natural next step after elementary school. Because Student had not actually filed a stay put motion, OAH treated District's opposition as a District motion for stay put. OAH ordered District to produce the IEP in which the team agreed Student would attend Nesbit for sixth grade and the April 14, 2014 IEP, supported by sworn declarations, and gave Student a chance to respond.
Why it matters
A party claiming that an IEP team agreed to a temporary placement or a planned transition must back that claim with the IEP documents and sworn declarations, or OAH will not rule. Parents who want their child to stay in a current school during a dispute should file a clear stay put motion, not just list it as a proposed resolution.
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
- Van Scoy v. San Luis Coastal Unified Sch. Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083
- Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115
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. 2014060969 v. ORDER FOR SUPPLEMENTAL
BRIEFING ON MOTION FOR STAY
BELMONT-REDWOOD SHORES PUT
ELEMENTARY SCHOOL DISTRICT.
On June 17, 2014, Student filed with the Office of Administrative Hearings a Due Process Hearing Request (complaint) that names the Belmont-Redwood Shores Elementary School District. Student’s complaint requests as a proposed resolution that he remain in his current classroom at Nesbit Elementary School while the parties seek an appropriate placement for him. On June 20, 2014, District filed an opposition to Student’s request for stay put, contending that Student’s stay put is at Ralston Middle School as his natural progression after the completion of elementary school. Student did not submit a response.
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, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)
However, if a student’s placement in a program was intended only to be a temporary placement, such placement does not provide the basis for a student’s “stay put” placement.
(Verhoeven v. Brunswick Sch. Comm. (1st Cir. 1999) 207 F.3d 1, 7-8; Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558, 1563-64.)
In California, “specific educational placement” is defined as “that unique combination of facilities, personnel, location or equipment necessary to provide instructional services to All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
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.].)
DISCUSSION
Student only requests as a proposed resolution retention at Nesbit, and has not filed a motion for stay put to remain at Nesbit during the pendency of this matter. Therefore, District’s ‘opposition’ shall be considered a motion for stay put in which District requests an order that Student advance from Nesbit to Ralston for the 2014-2015 school year.
District’s motion includes a copy of Student’s February 24, 2014 IEP, in which Parent consented to its implementation. District’s motion asserts that the parties at a prior IEP team meeting agreed that Student would attend Nesbit for sixth grade for the 2013-2014 school year, even though Nesbit only goes through fifth grade, and then attend Ralston, District’s only school for sixth, seventh and eighth grade. District’s motion also includes a declaration from its Director of Special Programs that asserts that District and Parent met on April 14, 2014, to discuss Student’s transition to Ralston. However, District’s motion does not include any documentation regarding either meeting with Parent. Therefore, additional information is required before a ruling may be made on the pleadings.
ORDER
1. By 5:00 p.m. on July 2, 2014, District shall provide the following information
and briefing regarding:
a. The IEP in which the IEP team agreed that Student would attend Nesbit for
sixth grade for the 2013-2014 school year.
b. The April 14, 2014 IEP.
2. By 5:00 p.m. on July 7, 2014, Student shall provide any response to the
documents mentioned in paragraph 1 of this order.
Each party shall include sworn declarations supporting any factual assertions included in its briefing.
DATE: June 26, 2014
/S/
PETER PAUL CASTILLO
Administrative Law Judge Office of Administrative Hearings