California OAH special education order · November 30, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015110791 · ALJ Kara Hatfield

OAH denied Student's stay put motion because District agreed Student could stay in its independent study program while the case is pending, so there was no placement dispute to resolve.

Denied Stay put

Summary

Student asked OAH for a stay put order keeping Student in District's Alternative Education – Independent Studies program during the due process case. District filed an opposition arguing that Student had not yet been found eligible for special education, so there was no IEP placement to protect. District also said it did not object to Student staying in that program. OAH denied the motion because a stay put order is generally not needed when there is no dispute over placement, and it allowed Student to file a new motion, supported by authenticated documents and sworn declarations, if circumstances change.

Why it matters

If a district agrees in writing to keep the student in the requested program, OAH may decline to issue a stay put order. Parents keep the right to come back with a properly supported motion if the district later tries to change the placement.

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

Topics

stay put independent study eligibility not yet established no placement dispute renewed motion allowed

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. 2015110791 v. ORDER DENYING MOTION FOR

STAY PUT

SWEETWATER UNION HIGH SCHOOL

DISTRICT.

On November 17, 2015, Student filed a motion for stay put. On November 20, 2015, District filed an opposition disputing the legal basis on which Student requested stay put and Student’s entitlement to stay put, but also agreeing to Student remaining in the independent study educational program Student’s motion requested.

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, which has been implemented prior to the dispute arising. (Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618, 625.)

DISCUSSION

District opposes the motion for stay put on the basis that as a Student who had not yet been found eligible for special education and related services, there was no “current educational placement” pursuant to an IEP implemented prior to the dispute arising;

however, District in effect does not oppose Student’s motion for stay put in that District does not object to Student continuing in the Alternative Education – Independent Studies program and indicates that “to the extent this is the program [in which] [Student] is requesting to be maintained, there is no dispute.”

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

Although District has not pledged by sworn declaration to continue providing services to Student through the Alternative Education – Independent Studies program, District’s filing indicates there is no dispute over what program of instruction Student will participate in during the pendency of this case. An order for stay put is generally not required unless a dispute over placement exists. Accordingly, Student’s motion for stay put is denied. Should circumstances change, Student is not precluded from submitting a new motion for stay put supported by authenticated documents and declarations under penalty of perjury.