California OAH special education order · June 30, 2015

Order Denying Student's Motion for Stay Put

OAH Case No. 2015060967 · ALJ June R. Lehrman

OAH denied Student's stay put motion because the IEP Student relied on placed Student in a nonpublic school only temporarily, with funding expressly ending June 30, 2015.

Denied Stay put

This case went to decision

Student v. San Diego Unified School District (consolidated): San Diego Unified is the responsible district for a student with autism who moved into its boundaries in June 2015. (2015)

Summary

Student asked OAH to order stay put in a nonpublic school, and District opposed. OAH denied the motion because the IEP Student relied on placed Student at the nonpublic school on a temporary basis, stating funding would end June 30, 2015. A temporary placement cannot serve as the stay put placement. OAH did not decide District's other arguments about residency or whether District's offer was comparable to the nonpublic school.

Why it matters

If an IEP says a placement is temporary or funded only until a set date, families likely cannot use it as stay put once that date passes. Parents should look closely at IEP language that limits how long a placement will last before agreeing to it.

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

stay put temporary placement nonpublic school iep end date

Order details

OAH case number: 2015060967
Order date: June 30, 2015
Order type: Stay put
Ruling: Denied
Administrative law judge: June R. Lehrman
Moving party: Student
Case filed by: Student
Education agency: San Diego Unified School District
Student's counsel: Not stated
District's counsel: Not stated
Official order: OAH PDF

Orders in this case

June 30, 2015: Order Denying Student's Motion for Stay Put
July 3, 2015: Order on Reconsideration, Reaffirming Denial of Stay Put
July 27, 2015: Hearing set for September 2-3, 2015; telephonic prehearing conference set for August 24, 2015. (PDF)
August 18, 2015: Unopposed motion to amend granted; amended complaint deemed filed August 18, 2015, and timelines reset. (PDF)
August 27, 2015: Order Granting Motion to Consolidate
October 6, 2015: Order Following Prehearing Conference of October 2, 2015, and Granting Bifurcation and Continuing Ca
October 8, 2015: Order Denying Motion for Reconsideration of Order Partially Granting Student's Motions to Quash Subp
October 8, 2015: Order Granting Peremptory Challenge
October 28, 2015: Order Granting in Part and Denying in Part Student's Motion to Set Prehearing Conference and Due Pro
November 30, 2015: Prehearing conference continued to December 4, 2015 for settlement; December 8 hearing remains on calendar. (PDF)
December 4, 2015: PHC order sets consolidated hearing for December 8, 2015, defines issues, and permits party audio recording. (PDF)
Decision (2015-11-16)

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(S) ON BEHALF OF STUDENT, OAH CASE NO. 2015060967

v. ORDER DENYING STUDENT’S

MOTION FOR STAY PUT

SAN DIEGO UNIFIED SCHOOL

DISTRICT.

On June 24, 2015, Student filed a motion for stay put. On June 29, 2015, District filed an opposition. As discussed below, the motion is denied. 1

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 (IEP), which has been implemented prior to the dispute arising. (Thomas v.

Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

However, 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.)

On June 30, 2015, Student filed a Notice of Intent to Respond to District’s Opposition.

OAH generally does not contemplate responses to oppositions. Moreover, given the limited grounds of this Order, and the numerous alternate arguments raised by the parties, this Order should focus the issues such that the parties’ contemplated further filings may become unnecessary.

DISCUSSION

Here, the IEP on which Student relies placed Student in a nonpublic school on a temporary basis, explicitly stating that the nonpublic school would be funded only until June 30, 2015. According to the legal authorities cited above, a temporary placement does not form a basis for stay put. For this reason, Student’s motion is denied.

District’s other arguments contend that Student did not establish residency within District, and that District’s offer of placement and services was “comparable” to the nonpublic school for purpose of stay put. These are not addressed herein. The basis for this Order is that Student seeks as stay put a placement that was explicitly temporary, and thus the motion is denied.