California OAH special education order · July 3, 2015
Order on Reconsideration, Reaffirming Denial of Stay Put
OAH Case No. 2015060967 · ALJ June R. Lehrman
OAH reconsidered but again denied Student's stay put request because the IEP set an explicit June 30, 2015 end date for nonpublic school funding, which made the placement temporary.
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 reconsider its June 30, 2015 denial of stay put. Student offered new facts: Student had attended a nonpublic school for several years and was aging out of the district that placed him there. Student argued this showed the placement was not meant to be temporary, and District opposed. OAH found the new facts justified reconsideration but held that the prior IEPs and the change of districts did not override the IEP's clear June 30, 2015 end date for nonpublic school funding, so stay put was again denied.
Why it matters
An explicit end date on a placement or funding in the last IEP can defeat stay put, even after years at the same nonpublic school. Parents should watch for end-date language in IEPs, especially when a student is moving between districts.
Key authority cited
- 20 U.S.C. § 1415(j)
- Ed. Code, § 56505, subd. (d)
- Gov. Code, § 11521
- Code Civ. Proc., § 1008
- 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. 2015060967 v. ORDER ON RECONSIDERATION,
REAFFIRMING DENIAL OF STAY
SAN DIEGO UNIFIED SCHOOL PUT
DISTRICT.
On June 30, 2015, the undersigned administrative law judge issued an order denying Student’s motion for stay put. On July 1, 2015, Student filed a motion for reconsideration.
On July 2, 2015, District opposed. As discussed below, Student’s motion for reconsideration alleges new facts warranting reconsideration; however, on reconsideration, stay put is again denied.
APPLICABLE LAW
The Office of Administrative Hearings will generally reconsider a ruling upon a showing of new or different facts, circumstances, or law justifying reconsideration, when the party seeks reconsideration within a reasonable period of time. (See, e.g., Gov. Code, § 11521; Code Civ. Proc., § 1008.) The party seeking reconsideration may also be required to provide an explanation for its failure to previously provide the different facts, circumstances or law. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199-1200.)
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.)
DISCUSSION AND ORDER
Student supplements the original motion for stay put with additional facts, that Student had attended a non-public school for several years prior to the IEP here in question, and was aging out of the school district that had placed him there. Thus, Student argues, although the IEP contained an explicit June 30, 2015 end date for the nonpublic school funding, it was not intended to be temporary, thus distinguishing Verhoeven v. Brunswick Sch. Comm. (1st Cir. 1999) 207 F.3d 1, 7-8 and Leonard v. McKenzie (D.C. Cir. 1989) 869 F.2d 1558, 1563-64.
The additional facts warrant reconsideration of the denial of stay put, but are unpersuasive. The prior years’ IEP’s are not persuasive that the intent of this IEP was indefinite funding. Further, the fact that Student was aging out of the school district, which placed him at the nonpublic school, does not alter the clear language of the IEP.
It is equally likely that the former school district, by placing the end date in the IEP, explicitly intended the nonpublic school not to constitute stay put, and explicitly intended the new school district not to be bound thereby. Since Student’s arguments regarding the parties’ intentions are not persuasive in light of the explicit June 30, 2015 end date, the legal citations cited above are not distinguishable, and stay put is again denied.
IT IS SO ORDERED.
DATE: July 03, 2015
/S/
JUNE R. LEHRMAN
Presiding Administrative Law Judge Office of Administrative Hearings