California OAH special education order · December 8, 2015

Order Denying Motion for Stay Put

OAH Case No. 2015110951 · ALJ Alexa J. Hohensee

OAH denied Student's stay put request for District transportation to an out-of-district after-school daycare because Student offered no evidence that the last implemented IEP provided such transportation.

Denied Stay put

Summary

Student asked OAH for a stay put order requiring District to transport Student to a private after-school daycare outside District boundaries that provides pediatric health care and extracurricular activities. District opposed. It submitted staff declarations stating that the last agreed-upon and implemented IEP called only for school-to-home transportation, and that District had driven Student to an in-district daycare only as a courtesy. Neither side submitted the IEP itself, and OAH denied the motion because Student offered no credible evidence that the IEP provided for transportation to an out-of-district after-school program.

Why it matters

A family seeking stay put must show what the last agreed-upon and implemented IEP actually requires, ideally by attaching the IEP itself. A service a district provides informally as a courtesy, and that is not written into the IEP, will likely not be protected as stay put.

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, subd. (a)
Thomas v. Cincinnati Bd. of Educ. (6th Cir. 1990) 918 F.2d 618

Topics

stay put transportation after-school daycare evidence last implemented iep

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. 2015110951 v. ORDER DENYING MOTION FOR

STAY PUT

OCEANSIDE UNIFIED SCHOOL

DISTRICT.

On November 25, 2015, Student filed a motion for stay put. On December 3, 2015, District filed an opposition.

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.)

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, subd. (a).)

DISCUSSION

Parent seeks a stay put order requiring District to transport Student to an after school private daycare facility located out of District that provides pediatric health care and extracurricular activities. Student did not submit a copy of Student’s last agreed upon and implemented IEP, or any evidence that Student’s last agreed upon and implemented IEP provided for transportation to a daycare facility after school, and particularly out of District’s boundaries.

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

District submitted declarations under penalty of perjury of staff establishing that Student’s last agreed upon and implemented IEP called for transportation from school-to- home, and that District transported Student to a daycare facility within District as a courtesy to Parent, but had no obligation to do so. District contends that it never drove Student to an out-of-District facility, and that such a location cannot be stay put. District also did not submit a copy of Student’s last agreed upon and implemented IEP.

Student has offered no credible evidence that Student’s last agreed upon and implemented IEP provided for transportation to an after school program located out of District’s boundaries . Accordingly, Student’s motion for stay put is denied.