California OAH special education order · September 9, 2015
Order Denying Motion for Stay Put
OAH Case No. 2015080259 · ALJ Judith Pasewark
OAH denied Student's stay put request for Orton-Gillingham tutoring and private school tuition because Student, a unilaterally privately placed child, had only an Individualized Service Plan and never had an implemented IEP.
This case went to decision
Student v. Winters Joint Unified School District et al.: Winters and Davis Joint Unified prevail on all claims; missing 2014 IEP goals were harmless procedural error. (2015)
Summary
Parent, representing Student without a lawyer, asked that Davis fund Student's Orton-Gillingham tutoring and private school tuition while the due process case was pending. OAH treated this as a stay put request. Davis opposed, arguing that Student was unilaterally placed in a private school, that no IEP had ever been implemented, and that Davis was not Student's responsible district. Winters did not respond. OAH denied the request because Student had only received Individualized Service Plan (ISP) services from Davis as a privately placed student, and there was no claim that any IEP had ever been implemented, so there was no stay put placement to maintain.
Why it matters
Stay put protects the placement in the last implemented IEP. A child who was unilaterally placed in a private school and has received only ISP services from the district where the school sits generally has no stay put right to private tuition or tutoring.
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
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. 2015080259 v. ORDER DENYING MOTION FOR
STAY PUT
DAVIS JOINT UNIFIED SCHOOL
DISTRICT AND WINTERS JOINT
UNIFIED SCHOOL DISTRICT.
On September 1, 2015, Student filed a request for “Pendency Placement,” requesting that Davis Joint Unified School District, fund Student’s Orton-Gillingham tutoring and private school tuition pending determination of his due process request. Parent’s request constitutes a request for stay put 1. On September 4, 2015, Davis filed an opposition on the grounds that Student is unilaterally privately placed; no individualized education program has been implemented on Student’s behalf; and Davis is not Student’s local education agency responsible for providing him with an individualized education program. Winters Joint Unified School District did not file a response to Student’s request.
APPLICABLE LAW AND DISCUSSION
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 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.)
Student is represented, pro se, by Parent who filed a Request for Pendency Placement. This is a request for Stay Put, as Parent is requesting that Davis maintain Student’s current placement until determination of this due process request. (20 U.S.C.
§ 1415(j); 34 C.F.R. § 300.518(a) (2006); Ed. Code, § 56505 subd. (d).)
In its entirety, Parent’s stay put requests states, “I wish to request PENDENCY PLACEMENT for Student for Orton-Gillingham tutoring and private school tuition. District of residence is Winters Joint Unified School District.” In reviewing Student’s amended complaint, Parent alleges Student attends St. James School, a private school within the boundaries of the Davis Joint Unified School District. Parent consented to an Individualized Service Program or “ISP” provided by Davis by virtue of Student’s unilateral private placement within that school district. Parent has not alleged consent or implementation of any individualized education program for Student from any school district.
Student’s request for pendency placement is insufficient to suggest he is entitled to a stay put placement. Based upon his complaint, Student has only received ISP services from Davis. Student has not alleged placement and services pursuant to an individualized education program from any school district. Student does not allege that any individualized education program has ever been implemented on behalf of Student. There is no factual basis to suggest Student previously received special education and related services pursuant to an individualized education program. Therefore, Student’s request for stay put must be denied.
ORDER
Student’s request for pendency placement, also known as stay put is denied.
DATE: September 9, 2015
/ S/
JUDITH PASEWARK
Administrative Law Judge Office of Administrative Hearings