California OAH special education order · January 29, 2015
Order Granting Motion for Stay Put
OAH Case No. 2014120033 · ALJ June R. Lehrman
OAH granted Student's stay put motion, ordering District to continue all counseling and psychiatric services from the residential-placement IEP because District offered no evidence they could not be provided outside that setting.
Summary
Student, who had been discharged from a Utah residential treatment center for medical reasons, asked OAH for stay put on the individual, group, and family counseling and psychiatric services in his August 20, 2013 IEP. District did not oppose the individual and group counseling, but argued that family counseling and psychiatric services were built into the residential setting and could not be provided outside it. OAH granted the motion in full because the IEP's offer of these services was undisputed and District gave no evidence that they could not be delivered outside the residential setting. OAH had earlier held that a temporary home-instruction IEP was not Student's stay put placement.
Why it matters
Related services in the last implemented IEP can remain in place under stay put even after the student leaves the setting where they were delivered. A district that claims services cannot be provided elsewhere must back that claim with evidence.
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 v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115
- 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. 2014120033 v. ORDER GRANTING MOTION FOR
STAY PUT
LONG BEACH UNIFIED SCHOOL
DISTRICT.
On January 20, 2015, Student filed a motion for stay put. On January 23, 2015, District filed a partial opposition/partial non-opposition. On January 28, 2015, Student filed a response. As discussed below, the motion is granted.
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 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.)
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 an individual with exceptional needs,” as specified in the IEP. (Cal. Code Regs., tit. 5, § 3042.)
Courts have recognized 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.)
DISCUSSION
Student is a 17 year old young man who is eligible for special education. On May 3, 2013, Student was placed at the Heritage School, a residential treatment center in Utah. The placement was documented by an IEP dated August 20, 2013, providing for a special day class in a structured therapeutic setting, with the following related services: individual counseling for 60 minutes per week; group counseling for 120 minutes per week; family counseling of 120 minutes per month; and psychiatric services for 30 minutes per month. On September 4, 2013, Student suffered a serious medical problem, a bowel perforation, which caused him to be hospitalized for four weeks. Following the hospitalization, Student was discharged from Heritage due to his medical condition and returned home. On February 19, 2014, Student’s parent signed an IEP which temporarily placed Student on home instruction for the time period of February 20, 2014 through April 25, 2014. On December 2, 2014, the Office of Administrative Hearings held that the February 19, 2014, IEP did not constitute Student’s stay-put placement because it was temporary.
Student’s motion for stay put seeks a continuation of the individual, group and family counseling and psychiatric related services that Student received at Heritage pursuant to the August 20, 2013 IEP, although Student is no longer in the residential setting. District’s partial opposition/non-opposition does not dispute that Student’s August 20, 2013, IEP provided for these related services, and it does not oppose the individual and group counseling services, but states that the family counseling and psychiatric services were only intended to be embedded into the residential setting and cannot otherwise be implemented by District.
District provides no evidence for its contention that the family counseling and psychiatric services cannot be implemented outside the residential setting. The offer of these services in the August 20, 2013, IEP is not in dispute. Therefore Student’s motion for stay put is granted. Student’s stay put related services shall consist of: individual counseling for 60 minutes per week; group counseling for 120 minutes per week; family counseling of 120 minutes per month; and psychiatric services for 30 minutes per month.
ORDER
Student’s motion for stay put is granted. Student’s stay put related services shall consist of: individual counseling for 60 minutes per week; group counseling for 120 minutes per week; family counseling of 120 minutes per month; and psychiatric services for 30 minutes per month.
DATE: January 29, 2015
/S/
JUNE R. LEHRMAN
Administrative Law Judge Office of Administrative Hearings