California OAH special education order · February 24, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015020828 · ALJ Alexa J. Hohensee

OAH denied Student's stay put motion because Student sought to move from her Kansas residential program to one nearer Parent, rather than keep her current placement.

Denied Stay put

Summary

Student asked OAH, through a stay put motion, to move her from her residential treatment program in Kansas (Lake Mary) to a program closer to Parent in California. District opposed. It filed a sworn declaration from its special education director stating that the last agreed-upon and implemented IEP, dated March 12, 2014, as amended, places Student at Lake Mary, and that District would not change that placement while the case is pending. OAH denied the motion because stay put keeps the current placement in place and does not change it. Student's motion also lacked a sworn declaration and a copy of the last implemented IEP.

Why it matters

Stay put only keeps the last agreed-upon and implemented IEP placement in place during a dispute. It cannot be used to get a new or more convenient placement. Stay put motions should include a sworn declaration and a copy of the last implemented IEP.

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
Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put residential placement out-of-state placement current educational placement declaration requirement

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. 2015020828

v. ORDER DENYING MOTION FOR

STAY PUT

SANTA BARBARA UNIFIED SCHOOL

DISTRICT.

On February 18, 2015, Student filed a motion for stay put, seeking that Student be moved from her current residential treatment program in Kansas (Lake Mary) to a program closer to Parent in California.

On February 23, 2015, Santa Barbara Unified School District filed opposition.

On February 24, 2015, Student filed a reply. On February 24, 2015, District filed a response to Student’s reply reiterating that District does not propose to change Student’s program.

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 (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.)

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

DISCUSSION AND ORDER

Student’s motion is not supported by a sworn declaration and does not include a copy of the last agreed upon and implemented IEP. Student is not seeking to maintain Student’s current placement, which her moving papers and reply concede is at Lake Mary, but to change her placement to a location more convenient to Parent.

On the other hand, District’s opposition is supported by the sworn declaration of its special education director. The director states that the last agreed upon and implemented IEP is dated March 12, 2014, as amended, and calls for placement and services at Lake Mary, which placement and services the District will not change pending a decision on Student’s due process hearing request.

District has pledged by sworn declaration to continue providing services within Student’s current educational placement at Lake Mary. Accordingly, Petitioner’s motion for stay put is denied.