California OAH special education order · August 21, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015080687 · ALJ Robert Helfand

OAH denied Student's request to keep her at Land Park Academy as stay put because the nonpublic school had discharged her, leaving Elk Grove obligated to find a comparable placement instead.

Denied Stay put

Summary

Student asked OAH to order that she remain at Land Park Academy, the nonpublic school in her last implemented IEP, as her stay put placement. Land Park had told the district in May 2015 that its program was not appropriate and removed Student, and she stopped attending on May 28, 2015. Elk Grove opposed, arguing that neither it nor OAH could force Land Park to accept Student. Following earlier OAH decisions, the ALJ ruled that OAH cannot compel a nonpublic school to keep a student it has discharged, so Elk Grove must instead find a comparable nonpublic school placement. Student may file a new stay put motion if Elk Grove's offer is not comparable or if it makes no offer.

Why it matters

When a nonpublic school drops a student, families cannot use stay put to force that school to take the student back. The district must offer a comparable placement, and parents can return to OAH if the district's offer falls short or never comes.

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
  • Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115
  • Student v. San Marcos Unified Sch. Dist. (2013) OAH Case No. 2013010566

People named in the order

  • Peter Paul Castillo, Administrative Law Judge (quoted prior OAH order)

Topics

stay put nonpublic school comparable placement unilateral discharge current educational placement

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/LEGAL GUARDIAN ON OAH Case No. 2015080687

BEHALF OF STUDENT,

ORDER DENYING MOTION FOR

v. STAY PUT

ELK GROVE UNIFIED SCHOOL

DISTRICT.

On August 17, 2015, Parent/Legal Guardian on behalf of Student filed a motion for stay put. On August 20, 2015, Elk Grove Unified School District filed an opposition to the motion.

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, 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.)

Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35.) Progression to the next grade maintains the status quo for purposes of stay put. (Van Scoy v. San Luis Coastal Unified Sch. Dist. (C.D. Cal. 2005) 353 F.Supp.2d 1083, 1086 [“stay put” placement was advancement to next grade]; see also Beth B. v. Van Clay (N.D. Ill. 2000) 126 F. Supp.2d 532, 534; Fed.Reg., Vol. 64, No. 48, p. 12616, Comment on § 300.514 [discussing grade advancement for a child with a disability.].)

Courts have recognized, however, that because of changing circumstances, the status quo cannot always be replicated exactly for purposes of stay put. (Ms. S ex rel. G. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115, 1133-35.) A student is not entitled to the identical services pursuant to his or her IEP when those services are no longer possible or practicable. (Ibid., at pp. 1133-1134.) When a student’s “current educational placement”

becomes unavailable, the local educational agency must provide the student with a similar placement in the interim. (See Knight v. District of Columbia (D.C. Cir. 1989) 877 F.2d 1025, 1028; McKenzie v. Smith (D.C. Cir. 1985) 771 F.2d 1527, 1533.)

OAH cannot compel a nonpublic school or school district to maintain placement at a nonpublic school that is no longer available to serve the student due to unilateral discharge of the student by the nonpublic school. In such a case, the school district has the legal obligation to find a comparable educational placement for the student to attend. (Student v.

San Marcos Unified Sch. Dist. Et al (February 5, 2013) Cal.Offc.Admin.Hrngs. Case No. 2013010566 (San Marcos) [Order Denying Motion for Stay Put].)

DISCUSSION

Student attended Land Park Academy, a non-public school, for the 2014-2015 school year pursuant to placement in Student’s last consented to and implemented educational program. On May 8, 2015, Land Park “admitted that its program was not appropriate and notified the school district of [Student’s] removal from the school.” (Motion, p. 2.) On May 28, 2015, Student ceased attending Land Park. Thus, placement at Land Park was no longer possible.

Student contends that OAH should issue an order requiring that Student continue to attend Land Park as her stay put placement. In its opposition, Elk Grove contends that it and OAH cannot compel Land Park to accept Student.

In San Marcos, Student’s last implemented IEP called for placement at Banyan Tree, a non-public school. Banyan Tree, like here, decided to no longer permit Student to attend the school. Student moved for an order from OAH requiring Student to attend Banyan Tree as a stay put placement. OAH, per ALJ Peter Paul Castillo, stated:

Because Student’s placement at Banyan is no longer available due to Banyan’s unilateral action, the District has the legal obligation to find a comparable educational program for Student to attend. The District contends that the Excelsior Academy is a comparable educational program and Student disagrees.

This same issue came before OAH in Parents v. San Ramon Unified School District and Wings Learning Center (November 5, 2014, Cal.Offc.Admin.Hrngs. Case No. 201411093 [Order Denying Motion for Stay Put]). OAH ruled in that matter, that since the placement is no longer available, the local education agency is obligated to find a comparable placement for the child to attend.

Elk Grove, in its opposition, states that it is attempting to find a comparable non- public school placement, as called for in the last implemented IEP, for Student as her stay put placement.

Accordingly, Student’s motion for stay put is denied. However, nothing in this order prevents Student from filing a subsequent motion for stay put, contending that Elk Grove’s subsequent offer is not a comparable non-public school placement or that Elk Grove has not made an offer.

ORDER

Student’s motion for stay put is denied.

DATE: August 21, 2015

/ S/

ROBERT HELFAND

Administrative Law Judge Office of Administrative Hearings