California OAH special education order · March 26, 2015
Order Denying Motion for Stay Put
OAH Case No. 2015030954 · ALJ Joy Redmon
OAH denied Student's stay put request for 1,411 weekly minutes of MAPSS intensive services because the IEP addendum made the services temporary, with a set end date and stated purpose.
This case went to decision
Student v. Tehachapi Unified School District (consolidated): Tehachapi Unified must provide behavior aides and a transition plan for a missed 2014 behavior assessment; other claims and IEE requests denied. (2015)
Summary
Student filed a due process complaint and asked OAH to order Tehachapi to keep providing 1,411 minutes per week of intensive individualized services from MAPSS, a non-public agency, as stay put. Tehachapi opposed, arguing that the November 14, 2014 IEP addendum made the services temporary, ending January 20, 2015. OAH agreed and denied the motion. The addendum had a clear end date and explained that the services were meant to give MAPSS time to finish interviews and a functional behavior assessment and to train staff. Extending the services past that date, and ending them on February 20, 2015 after written notice to Parents, did not turn them into stay put services before Student filed in March 2015.
Why it matters
Services that an IEP describes as temporary, with a set end date and a limited purpose, usually will not count as stay put, even if the district keeps providing them past the end date. Parents who want to keep such services should file for due process and raise stay put before the services stop, and should push back on IEP language that makes key services time-limited.
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
- Verhoeven v. Brunswick Sch. Comm. (1st Cir. 1999) 207 F.3d 1
- Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558
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. 2015030954 v. ORDER DENYING MOTION FOR
STAY PUT
TEHACHAPI UNIFIED SCHOOL
DISTRICT.
On March 20, 2015, Student filed a due process complaint naming Tehachapi Unified School District as respondent. Student contemporaneously filed a motion for stay put seeking an order that Tehachapi provide 1,411 minutes intensive individualized services weekly by MAPSS, a non-public agency. On March 25, 2015, Tehachapi filed an opposition asserting that Student’s last agreed upon and implemented individualized education program did not include MAPSS’s services. Specifically, Tehachapi argues that pursuant to Student’s November 14, 2014, IEP addendum, MAPSS’s services were temporary with an end date of January 20, 2015; that services were terminated on February 20, 2015 (after parental notification); and that Student attended school without MAPSS services on February 23, 2015.
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) that was 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, however, 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.)
All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.
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.
DISCUSSION
The November 14, 2014, addendum to Student’s IEP has a specific end date for MAPPS services of January 20, 2015. The notes from the IEP addendum state that the reason for the service is “to provide more time for MAPPS to complete their interviews, FBA, and to provide time for MAPPS to train aide [aide is then crossed out and replaced with ‘MAPPS ABA therapist’] in supporting Student in the classroom.” Tehachapi continued the services beyond January 20, 2015, and provided written notice to Parents before terminating the services. 2 In the February 19, 2015, letter to Parents from Tehachapi’s educational services director confirming MAPPS’s services would cease; she indicated that IEP team meetings were held on December 18, 2014, January 22, 2015, and February 3. 2015, where Student’s IEP team reviewed Student’s triennial assessment results and the data collected by MAPPS. Extending services beyond the initial termination date included in the IEP addendum did not covert the services from temporary to Student’s stay- put services. The unambiguous end date for services coupled with the specific rational provided in the IEP addendum indicates the parties’ intent that the services were temporary.
Moreover, the MAPPS’s services were terminated on February 20, 2015. Student attended school on February 23, 2015, after the MAPPS’s services were terminated consistent with the anticipated termination under the November 14, 2014, IEP addendum. Student did not file a due process complaint until March 20, 2015. Therefore, Student’s last agreed upon and implemented IEP at the time the dispute arose did not include MAPPS services. For the forgoing reasons, Student’s request for stay put of her MAPPS services is denied.
ORDER
Student’s request for a stay-put order continuing 1,411 minutes weekly of intensive individualized services by MAPSS, a non-public agency is denied.
DATE: March 26, 2015
/ S/
JOY REDMON
Administrative Law Judge Office of Administrative Hearings Mother confirmed receiving prior notice that MAPPS’s services would terminate on February 20, 2015, in an email sent to Tehachapi prior to cessation.