California OAH special education order · July 20, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015050832 · ALJ Alexa J. Hohensee

OAH denied Student's stay put motion without prejudice because Student offered no sworn declaration or authenticated documents showing the last agreed-upon and implemented IEP or District's obligation to serve her.

Denied without prejudice Stay put

Summary

Student asked to stay put at Sundown Elementary under her December 23, 2014 IEP, arguing that District wrongly revoked her inter-district permit. District opposed, saying Student had not shown the attached IEP was her last agreed-upon and implemented IEP. OAH denied the motion because Student submitted no sworn declaration, the attached IEP was unauthenticated, heavily annotated, and listed two different schools, and the permit policy was not authenticated. Student may refile with proper evidentiary support.

Why it matters

A stay put motion needs admissible evidence, such as a sworn declaration and authenticated IEP and policy documents. This matters most when a student attends on an inter-district permit and the district's duty to serve her is disputed.

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
McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527

Topics

stay put inter-district transfer evidence authentication last implemented iep

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. 2015050832 v. ORDER DENYING MOTION FOR

STAY PUT

WESTSIDE UNION SCHOOL DISTRICT.

On July 6, 2015, Student filed a motion for stay put. On July 9, 2015, District filed an opposition.

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.)

It does not violate stay put if a school is closed for budget reasons and the child is provided a comparable program in another location. (See McKenzie v. Smith (D.C. Cir.

1985) 771 F.2d 1527, 1533; Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; Weil v. Board of Elementary & Secondary Education (5th Cir. 1991) 931 F.2d 1069, 1072-1073; see also Concerned Parents & Citizens for Continuing Education at Malcolm X (PS 79) v. New York City Board of Education (2d Cir. 1980) 629 F.2d 751, 754, cert. den.

(1981) 449 U.S. 1078 [101 S.Ct. 858, 66 L.Ed.2d 801]; Tilton v. Jefferson County Bd. of Education (6th Cir. 1983) 705 F.2d 800, 805, cert. den. (1984) 465 U.S. 1006 [104 S.Ct. 998, 79 L.Ed.2d 231].)

DISCUSSION

Student seeks stay put at Sundown Elementary under the terms of her December 23, 2014 IEP. Student contends that her inter-district permit to attend District, which is not her school district of residence, was impermissibly revoked. District contends that Student has All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.

not established that the IEP attached to her motion is Student’s last agreed upon and implemented IEP for stay put purposes.

Student did not submit a sworn declaration as to the facts in this matter. The unauthenticated IEP attached to the motion, which is heavily annotated, states both that Student attends Sundown Elementary and that Student attends Rancho Vista School, rendering her last placement unclear. Student also attached a copy of an inter-district permit policy, which she contends is District’s policy. Student argues that the policy bars revocation of her permit, but the document is not on District letterhead or otherwise authenticated. No admissible evidence of an inter-district transfer was submitted.

Student has not provided admissible evidence that her December 23, 2014 IEP is the last agreed upon and implemented IEP, or that District is her school district of residence or otherwise obligated to provide Student with a FAPE.

Accordingly, Student’s motion for stay put is denied, without prejudice to Student filing a sufficiently supported motion.