California OAH special education order · November 2, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015100670 · ALJ Marian H. Tully

OAH denied Student's request for stay put in Project SEARCH. Student moved mid-year from a district in another SELPA, and East Side only had to offer a comparable interim program, which it did.

Denied Stay put

Summary

Student is a 20-year-old adult who holds her own educational rights. She moved into East Side during the school year and asked for stay put in Project SEARCH, a full-time vocational internship program at Stanford University offered in her prior district's IEP. East Side opposed. It showed it had offered a comparable post-secondary program with community-based instruction, vocational training, and off-campus job experience. OAH ruled that a new district receiving a mid-year transfer from outside its SELPA must offer an interim program that approximates the old IEP as closely as possible, not the identical program. East Side did that, so there was no basis to force an inter-district transfer to Project SEARCH as stay put.

Why it matters

When a student moves to a new district during the school year, stay put generally becomes the new district's comparable interim program, not the exact placement from the old district. Families should expect to challenge whether that interim offer provides a FAPE rather than rely on stay put to keep the old program.

Key authority cited

20 U.S.C. § 1415(j)
Ed. Code, § 56505, subd. (d)
20 U.S.C. § 1414(d)(2)(C)(i)(I)
Ed. Code, § 56325, subd. (a)(1)
Ms. S. v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115
Termine v. William S. Hart Union High Sch. Dist. (C.D. Cal. 2002) 219 F.Supp.2d 1049

Topics

stay put transfer student interim placement comparable services transition program adult student

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. 2015100670 v. ORDER DENYING MOTION FOR

STAY PUT

EAST SIDE UNION HIGH SCHOOL

DISTRICT.

On October 19, 2015, Student file a request for due process naming East Side Union High School District and a motion for stay put supported by unauthenticated exhibits. East Side filed an opposition to the motion for stay put on October 23, 2015. The opposition was supported by a declaration from East Side’s Special Education Coordinator and authenticated exhibits.

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.) 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.)

When a special education student transfers to a new school district within the same academic year, the new district must adopt an interim program that approximates the student’s old IEP as closely as possible for 30 days until the old IEP is adopted or a new IEP is developed. (20 U.S.C. § 1414(d)(2)(C)(i)(1); Ed. Code, § 56325, subd. (a)(1); see Ms. S.

ex rel G v. Vashon Island Sch. Dist. (9th Cir. 2003) 337 F.3d 1115, 1134.) The interim IEP becomes the stay put placement pending a disagreement concerning whether the interim IEP offers a FAPE. (Vashon, supra, 337 F.3d at p. 1134; Termine ex. rel. Termine v. William Hart Union High Sch. Dist. (C.D. Cal. 2002) 219 F.Supp. 1049, 1061.)

All references to the Code of Federal Regulations are to the 2006 edition, unless otherwise indicated.

DISCUSSION AND ORDER

The relevant facts as alleged in Student’s complaint and based upon the evidence submitted are undisputed. Student is twenty years old and eligible for special education under the category of intellectual disability. She maintains her own educational rights.

Student moved to within East Side boundaries on September 3, 2015. The East Side 2015-2016 school year began on August 11, 2015. Thus, Student moved within East Side’s boundaries during the East Side school year. Student’s prior district of residence was Fremont High School District. East Side and Fremont are not within the same SELPA.

Student’s most recent agreed upon IEP prior to her move had been developed by Fremont. It was dated November 13, 2014 and amended May 27, 2015. In pertinent part, it offered placement at Project SEARCH, a full-time internship program at Stanford University that provided academic instruction focused on vocational skills for part of the day, with the remainder of the day in a vocational setting learning independent job skills.

East Side held an IEP team meeting on September 28, 2015. East Side offered Student a comparable placement in an East Side post-secondary program with emphasis on community based instruction, vocational training, and social skills. Students in the program participated in extensive off-campus job training and work experience. The program was based on the campus of an East Side school and included extensive off-campus job training and experience.

East Side was required to offer an interim program as close as possible to the last implemented IEP, which it did. East Side was not required to provide Student exactly the same program provided by Fremont. While it is regrettable that Student was unable to obtain an inter-district transfer, there is no basis upon which to compel East Side to grant the transfer as stay put. Accordingly, Student’s motion for stay put placement in Project Search is denied.