California OAH special education order · August 27, 2014
Order Granting Motion for Stay Put
OAH Case No. 2014080616 · ALJ Susan Ruff
OAH granted Student's stay put motion, ordering LAUSD to keep providing the behavior aide services (BII) promised in the settlement and IEP, because those documents assigned the aide to Student, not to all students.
Summary
Student asked for stay put, arguing LAUSD was not providing the one-to-one behavior aide required by a May 2014 settlement agreement and a July 2014 IEP after a district staff member said the aide was assigned to all students. LAUSD opposed, saying it was providing a 'dedicated' aide who sometimes leads small group instruction with Student and peers. The ALJ found that the settlement and IEP language showed the aide was assigned to Student, granted stay put, and ordered LAUSD to continue BII services while the case is pending. Whether the aide may sometimes lead small groups is a factual dispute about the agreement's meaning that must be decided at hearing, not on a stay put motion.
Why it matters
Services written into a settlement agreement and a signed IEP become the stay put baseline, so a district cannot quietly spread an assigned aide across a whole class while a dispute is pending. Disputes over exactly how an aide's time may be used, though, usually need a full hearing.
Key authority cited
- 20 U.S.C. § 1415(j)
- 34 C.F.R. § 300.518(a)
- Ed. Code, § 56505, subd. (d)
- Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618
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. 2014080616 v. ORDER GRANTING MOTION FOR
STAY PUT
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
On August 12, 2014, Student filed a request for a due process hearing and a motion for stay put. Student contends that the Los Angeles Unified School District (LAUSD) is not providing the one-to-one behavioral aide services required by the settlement agreement between the parties, which was memorialized in a follow-up individualized education program signed by Student’s mother on July 7, 2014.
On August 22, 2014, LAUSD filed an opposition to the motion for stay put. LAUSD contends that it is providing the “dedicated” behavior aide for Student required by the settlement agreement and follow-up IEP.
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); 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 IEP, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990)
918 F.2d 618, 625.)
DISCUSSION
The May 27, 2014 settlement agreement between the parties stated, in pertinent part:
The District agrees to provide up to 1800 minutes per week of trained Behavior Intervention Implementation (BII) services and 8 hours per month of Behavior Implementation Development (BID) by a District provider from full execution of this Agreement.
The IEP signed on July 7, 2014, called for the 1800 minutes weekly of BII services (as well as compensatory BII services that are not at issue for purposes of this motion). On the services page the “Service Delivery Model” was listed as “Direct Service (Collaborative).” The meeting notes contained the following language regarding the behavioral aide service: “A BII is trained and is assigned to [Student].”
Both parties agree that the aide service was agreed-upon and memorialized in the IEP.
However, they disagree about how that service was to be implemented. Student contends that the aide was supposed to provide one-to-one services to Student. According to Student, after the IEP had been signed, a district staff member told Student’s mother that the aide was not just assigned to Student, but to all the students.
LAUSD contends that the aide is a “dedicated” aide who is assigned to Student.
According to the opposition papers, the aide “is assigned to [Student] and assists her with daily school activities.” The aide “monitors and addresses [Student’s] behaviors, and logs her behaviors for data-tracking purposes.” The aide “will sit with [Student] during classroom time” and “will sometimes lead small group instruction with [Student] and some of her peers.”
Based on the language of the agreement and IEP, it appears that Student is correct that the aide was assigned to Student, not to “all” students as told to Student’s mother. To the extent that this stay put motion is a dispute about that statement and whether the aide can be assigned to all students, the motion is straightforward and stay put is granted.
However, if the stay put motion concerns whether the “dedicated” aide is permitted to “sometimes lead small group instruction” with Student and peers as part of the aides’ duties, that involves a factual dispute regarding the meaning of the settlement agreement and follow- up IEP which can only be resolved at hearing. It cannot be decided on a motion for stay put.
ORDER
LAUSD shall continue to provide BII services to Student as called for in the settlement agreement of May 27, 2014, and the IEP signed on July 7, 2014, while this case is pending. 1 DATE: August 27, 2014
/S/
SUSAN RUFF
Administrative Law Judge Office of Administrative Hearings The IEP is referred to at times in the moving and opposing papers as the June 4, 2014 IEP. Apparently the IEP meeting was held on that date, but the IEP was not signed at that time.